Latino Express, Inc.

National Labor Relations Board - Board Decisions

May 21, 2014

360 N.L.R.B. 911 (N.L.R.B. 2014)

LATINO EXPRESS, INC. 911
360 NLRB No. 112
Latino Express, Inc., and Teamsters Local Union
No. 777, affiliated with the International
Brotherhood of Teamsters, AFL–CIO. Cas-
es 13–CA–077678, 13–CA–078126, 13–CA–
078127, 13–CA–079765, and 13–CA–082141
May 21, 2014
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS JOHNSON
AND SCHIFFER
On October 30, 2013, Administrative Law Judge Da-
vid I. Goldman issued the attached decision. The Re-
spondent and a group of employees seeking to participate
as Intervenors (Ramiro Lopez, et al.) each filed excep-
tions and a supporting brief, the General Counsel filed
answering briefs to both, and Ramiro Lopez, et al., filed
a reply brief. The General Counsel filed cross-
exceptions and a supporting brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions,1 cross-exceptions, and briefs,
and has decided to affirm the judge’s rulings, 2 findings,3
and conclusions, and to adopt the recommended Order as
modified and set forth in full below.4

1 The Respondent’s exceptions “incorporate” the exceptions filed by
Ramiro Lopez, et al., which challenge the judge’s finding of an unlaw-
ful withdrawal of recognition, and proposed bargaining remedies. In
light of our affirmance below of the judge’s denial of the motion to
intervene, we consider those exceptions only as part of the Respond-
ent’s exceptions.
2 In accord with the Board’s unpublished November 27, 2012 Order
Denying Request for Special Appeal, we affirm, as involving no abuse
of discretion, the judge’s denial of the motion of Ramiro Lopez, et al.,
employee petitioners in a decertification case, to intervene in this unfair
labor practice case, his denial of the petition of this employee group’s
attorney to revoke the General Counsel’s subpoena of the attorney to
testify in this case, and the modified sequestration procedure used by
the judge with respect to this attorney.
3 For the reasons stated by the judge, we find no merit in the excep-
tions to the judge’s finding that the Respondent’s withdrawal of recog-
nition violated Sec. 8(a)(5).
For the reasons stated by the judge, we similarly find no merit in the
Respondent’s exceptions to the judge’s findings that it violated Sec.
8(a)(5) by unilaterally implementing the “Driver’s Accountable Act”
(DAA), and by bargaining in bad faith in April 2012. Chairman Pearce
and Member Schiffer therefore find it unnecessary to address the Gen-
eral Counsel’s motion to strike these exceptions. While Member John-
son agrees that the judge’s findings are well supported, he would affirm
them by granting the General Counsel’s motion to strike the exceptions
to them as deficient under Board Rules Sec. 102.46(b), inasmuch as
neither the exceptions nor supporting brief state with sufficient speci-
ficity any grounds on which these purportedly erroneous findings
should be overturned.
4 We shall modify the judge’s recommended order to include the
additional requirement that the Respondent provide periodic reports on
the status of bargaining for 6 months. We find such a remedy appropri-
ORDER
The National Labor Relations Board orders that the
Respondent, Latino Express, Inc., Chicago, Illinois, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Withdrawing recognition from, and failing and re-
fusing to recognize and bargain collectively with, the
Teamsters Local Union No. 777 (the Union) as the ex-
clusive collective-bargaining representative of the bar-
gaining unit employees of the following appropriate unit:
All full-time and regular part-time drivers employed by
the Employer at its facility presently located at 3230
West 38th Street, Chicago, Illinois; excluding mechan-
ics, dispatchers, trainers, charter directors, payroll peo-
ple, payroll assistants, public relations people, mainte-
nance directors, office personnel, professional employ-
ees, managerial employees, guards, and supervisors as
defined in the Act.
(b) Unilaterally implementing changes to terms and
conditions of employment of its unit employees without
prior notice and affording the Union an opportunity to
bargain, and without first bargaining to a valid bargain-
ing impasse.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, recognize and bargain with the Union
for a reasonable period as set forth in the remedy portion
of the judge’s decision, as the exclusive representative of
the employees in the above-described appropriate unit
concerning terms and conditions of employment, and, if
an understanding is reached, embody the understanding
in a signed agreement.
(b) For a period of 6 months, submit written bargain-
ing status reports every 30 days to the compliance officer
for Region 13, serving copies thereof on the Union.
(c) Rescind and restore the status quo ante as to the un-
lawful unilateral change of implementing the Driver’s
Accountable Act.
(d) Make bargaining unit employees whole for any
losses they may have incurred as a result of the above-

ate in light of the Respondent’s failure to bargain in good faith for a
first contract with a newly certified union, the Respondent’s regressive
and bad-faith bargaining in April, its unlawful unilateral change to the
DAA that month, and the unlawful withdrawal of recognition. Member
Johnson concurs in providing this additional remedy, but would limit it
to 3 months.
We shall also substitute a new notice in accordance with our deci-
sion in Durham School Services, 360 NLRB 694 (2014).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD912
described unilateral change, plus interest, as described in
the remedy portion of the judge’s decision.
(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(f) Within 14 days after service by the Region, post at
its Chicago, Illinois facility, copies of the attached notice
marked “Appendix.”5 Copies of the notice, on forms
provided by the Regional Director for Region 13, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. In addition to physical posting of paper notices,
notices shall be distributed electronically, such as by
email, posting on an intranet or an internet site, and/or
other electronic means, if the Respondent customarily
communicates with its employees by such means. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material. In the event that, during the penden-
cy of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceed-
ings, the Respondent shall duplicate and mail, at its own
expense, a copy of the notice to all current employees
and former employees employed by the Respondent at
any time since April 2, 2012.
(g) Within 14 days after service by the Region, hold a
meeting or meetings, during working time, scheduled to
ensure the widest possible attendance, at which the at-
tached notice is to be read in English and Spanish to the
employees assembled for this purpose, by a responsible
official of the Respondent, or by a Board agent in the
presence of a responsible official of the Respondent, and
providing an opportunity for representatives of the Board
and the Union to be present for the reading of the notice.
(h) Within 21 days after service by the Region, file
with the Regional Director for Region 13 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.

5 If this Order is enforced by a judgment of a United States Court of
Appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated 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 bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT withdraw recognition from, or fail and
refuse to recognize and bargain in good faith with,
Teamsters Local Union No. 777 (the Union) as the ex-
clusive collective-bargaining representative of our em-
ployees in the following appropriate unit:
All full-time and regular part-time drivers employed by
the Employer at its facility presently located at 3230
West 38th Street, Chicago, Illinois; excluding mechan-
ics, dispatchers, trainers, charter directors, payroll peo-
ple, payroll assistants, public relations people, mainte-
nance directors, office personnel, professional employ-
ees, managerial employees, guards, and supervisors as
defined in the Act.
WE WILL NOT unilaterally implement changes to terms
and conditions of employment, such as those in the Driv-
er’s Accountable Act, without providing the Union prior
notice and an opportunity to bargain and without first
bargaining to a valid impasse.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce you in the exercise of rights guaranteed
you by Section 7 of the Act.
WE WILL recognize the Union as your collective-
bargaining representative, and upon request of the Union,
bargain in good faith with the Union and sign any
agreement reached on terms and conditions of employ-
ment for our employees in the bargaining unit.
WE WILL, for a period of 6 months, submit written
bargaining status reports every 30 days to the compliance
officer for Region 13, serving copies thereof on the Un-
ion.
WE WILL, upon request of the Union, rescind our uni-
lateral changes implemented with regard to the Driver’s
Accountable Act.
LATINO EXPRESS, INC. 913
WE WILL make you whole, with interest, for any loss
of earnings or other benefits you suffered as a result of
the unlawful unilateral changes to terms and conditions
of employment that we made.
LATINO EXPRESS, INC.
The Board’s decision can be found at
www.nlrb.gov/case/13-CA-077678 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1099 14th Street, N.W., Washington,
D.C. 20570, or by calling (202) 273–1940.
Charles J. Muhl, Esq., for the Acting General Counsel.
Zane D. Smith, Esq. (Zane D. Smith & Associates, LTD), of
Chicago, Illinois, for the Respondent.
James Glimco (Teamsters Local 777), of Lyons, Illinois, for the
Charging Party.
DECISION
DAVID I. GOLDMAN, Administrative Law Judge. These cases
involve an employer that provides school and charter trip trans-
portation in the Chicago area. Its employees’ successful effort
to unionize in 2010 and 2011 resulted in numerous findings of
violation of the National Labor Relations Act (the Act) against
the Employer.1 The instant cases arise out of the conduct of the
Employer during the period after the Union’s certification as
the employees’ representative on April 18, 2011. The Govern-
ment alleges that during the certification year the Employer
bargained in overall bad faith from June 10, 2011, to April 10,
2012, by its conduct at the negotiating table, as well as by uni-
lateral changes in terms and conditions of employment—one of
which, implemented April 6, 2012—is independently alleged to
be unlawful. The Government further alleges that the employer
unlawfully withdrew recognition from the Union on April 24,
2012, based on an employee decertification petition signed by
employees in March 2012, during the initial certification year.
The Government alleges that the petition was tainted by the
Employer’s bad-faith bargaining, and, in addition, that the peti-
tion was premature and did not prove lack of majority support
for the Union.

1 Latino Express, Inc., 358 NLRB 823 (2012), supplemented at 359
NLRB 518 (2012).
As discussed herein, I find that the one alleged unlawful uni-
lateral change violated the Act. I further find that the Employ-
er’s bargaining conduct beginning in April 2012 was unlawful.
However, the record evidence of the course of conduct at the
bargaining table from June 2011 through March 2012 is too
vague and nonspecific to prove an overall intent not to reach
agreement and I do not find a violation as to those periods of
the allegation. Finally, I find that the petition for decertifica-
tion cannot be relied upon to show a lack of majority support
for the Union because it was solicited during the certification
year and, because it was not proven to contain authentic signa-
tures of a majority of the bargaining unit employees. Accord-
ingly, I find that the April 24, 2012 withdrawal of recognition,
which was based solely on the petition, was unlawful.
STATEMENT OF THE CASE
On March 28 2012, Teamsters Local 177 (the Union or
Teamsters) filed an unfair labor practice charge alleging viola-
tions of the Act by Latino Express , Inc. (Latino Express),
docketed by Region 13 of the National Labor Relations Board
(the Board) as Case 13–CA–077678. The Union filed two ad-
ditional unfair labor practice charges, docketed as Cases 13–
CA–078126 and 13–CA–078127, on April 4, 2012. On April
27, 2012, the Union filed another charge against Latino Ex-
press, docketed as Case 13–CA–079765. On May 31, 2012, the
Union filed a further charge against Latino Express, docketed
as Case 13–CA–082141.
On July 31, 2012, based on an investigation into the charges,
the Acting General Counsel (the General Counsel), by the Act-
ing Regional Director for Region 13 of the Board, issued an
order consolidating the above-listed cases and issued a consoli-
dated complaint (the complaint) and notice of hearing alleging
violations of Section 8(a)(1) and (5) of the Act against Latino
Express. An amendment to the complaint pertaining to re-
quested remedial relief was issued August 13, 2012. Latino
Express filed an answer to the complaint denying all alleged
violations of the Act.
A trial in this case was conducted in this matter on October 9
and 10, 2012, and April 15, 2013, in Chicago, Illinois.2 After
the close of the hearing, on May 15, 2013, Latino Express filed
a motion to dismiss with the Board. On May 17, and again on
May 24, 2013, Latino Express filed motions to stay further
proceedings. By Order issued, June 11, 2013, the Board denied
Latino Express’ motions to dismiss the complaint and to stay
the proceedings.
Counsel for the General Counsel filed a posthearing brief in
support of his position on May 20, 2013. On the entire record,
I make the following findings, conclusions of law, and recom-
mendations.
JURISDICTION
Latino Express is an Illinois corporation with an office and
place of business in Chicago, Illinois, engaged in the business
of providing bus transportation services for students as well as

2 At the outset of the hearing, the Respondent orally admitted pars.
2(b) and 6(b) of the complaint, which had been denied in its answer to
the complaint.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD914
charter bus services to the general public. During the calendar
year preceding issuance of the complaint in this matter, Latino
Express, in conducting its business operations, derived gross
revenues in excess of $250,000, and purchased and received at
its Chicago, Illinois facility goods and materials valued in ex-
cess of $5000 from points outside the State of Illinois. At all
material times, Latino Express has been an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7) of
the Act. Based on the foregoing, I find that this dispute affects
commerce and that the Board has jurisdiction of this case, pur-
suant to Section 10(a) of the Act.
UNFAIR LABOR PRACTICES
The Union’s Certification and Request to Bargain
The Responden, Latino Express, provides transportation ser-
vices for the Chicago public schools. Latino Express drivers
pick up students in the morning on assigned routes and take
them to school, and then in the afternoon, pick up students at
school and deliver them near their homes. In addition, Latino
Express provides charter bus services for the general public and
for school-related events such as field trips. As of February
2012, there were approximately 84 drivers employed by Latino
Express.
After an organizing drive and a Board-conducted representa-
tion election, on April 18, 2011, Teamsters Local 777 was certi-
fied by the Board as the collective-bargaining representative of
the following unit of Latino Express employees:
All full-time and regular part-time drivers employed by the
Employer at its facility presently located at 3230 West 38th
Street, Chicago, Illinois; excluding mechanics, dispatchers,
trainers, charter directors, payroll people, payroll assistants,
public relations people, maintenance directors, office person-
nel, professional employees, managerial employees, guards,
and supervisors as defined in the Act.
On April 28, the Union’s president, James Glimco, wrote to
Latino Express (one third) owner and Vice President Henry
Gardunio, requesting dates on which the parties could com-
mence collective-bargaining negotiations.
Bargaining June 10, 2011, through April 11, 2012
Bargaining commenced June 10, 2011. There were approx-
imately 22 bargaining sessions conducted over the course of the
following 10 months (through April 11, 2012). The Union’s
principal negotiators were Teamsters Local 777 President
Glimco and Local 777 Business Agent and Organizer Elizabeth
Gonzalez. The Employer was represented at the bargaining
table by Attorney Zane Smith and a second attorney retained by
the Employer for negotiations, Sheila Genson. However, ac-
cording to Genson, it was communicated to the Union at “every
meeting” that “once we get a decent, full contract together” it
has “got to go to [Employer VP] Henry [Gardunio].” Gardunio
confirmed in his testimony that he was “involved all along” and
that Genson and Smith “would inform me about what was go-
ing on.” Gardunio, along with Latino Express’ president, Mi-
chael Rosas Sr., attended (one or both of them) the final five
meetings in February–April 2012. According to Gardunio,
after his attorneys “had resolved like maybe 50 of [the issues]
. . . [and] there was like maybe ten issues left” he got involved
at the bargaining table “to try to work on those final points.”
At that point, according to Gardunio, the parties were down to
about 10 or so issues in dispute, and had reached tentative
agreement on the remainder.
Prior to the first meeting on June 10, the Union sent the Em-
ployer a noneconomic proposal. The Employer provided a
counterproposal in November 2011.
One “key” issue in negotiations was the distribution of char-
ter work to employees. Charters formed a significant part of
employees’ income and union organizer/negotiator Gonzalez
testified that the assignment of charter work was an issue in
negotiations. Charter trips averaged about 40 a day before the
Union was certified, but had dropped to as few as five a day
after certification. Gonzalez testified that a chief concern of
drivers was that the charter work was not assigned fairly and,
further, that (nonunit) office workers and mechanics were
sometimes given this work, which was an important source of
income for the drivers.
The Union had been certified as the drivers’ bargaining rep-
resentative and the Union’s June 2011 proposal on (art. 1) pro-
vided that the agreement would cover:
All bus routes or runs, including any movement of buses,
vans or any other vehicle that will be used for the purpose of
transportation by the Employer, except for emergency or
maintenance-related movements.
The parties tentatively agreed to this language. However, the
parties’ discussions also revealed the Employer’s desire to have
nonunit mechanics, who could perform maintenance on vehi-
cles if the need arose, drive the long-distance charter assign-
ments. During negotiations, the Union agreed to permit me-
chanics to drive charter trips over 100 miles, but did not agree
that the work was exempt from the agreement or that any other
charter work would be excluded from the agreement.
However, notwithstanding the Employer’s agreement in ear-
lier negotiations, the Employer’s April 2, 2012 “final offer”
included, in the scope of agreement, the provision that “This
Agreement will not cover charter routes, charter routes on
weekends, charter routes in excess of 100 miles, emergency,
maintenance-related; and non-revenue related movements, as
more specifically addressed in this Agreement.” According to
the uncontradicted (and credited) testimony of union negotiator
Gonzalez, when the Union saw this it protested that this was an
attempt to “change the certified bargaining unit” and told the
Employer representatives that “we never agreed or accepted to
not covering the charter routes . . . . [I]t was different from
what we already had agreed to in the previous negotiations.”
Another issue in negotiations was the Union’s proposal gov-
erning discharges, discipline, and other disciplinary action. The
Union’s proposal, made in June 2011, incorporated a typical
“just cause” standard for discipline, with discipline subject to
review through the grievance procedure. The Employer’s
counterproposal—sent to the Union in November 2011—
excluded employees “written up based on just cause” from
using the grievance procedure and defined just cause to include,
but not be limited to, an array of 20 offenses ranging from
LATINO EXPRESS, INC. 915
“committing a sex crime” to “failing to adhere to safety rules”
and “customer complaint.” In addition, the Employer’s pro-
posal excluded “laid-off” employees from using the grievance
procedure.
The Employer’s final offer, provided to the Union on April
2, 2012, contained a proposal on discharge, suspension, and
other disciplinary action that was similar to its November 2011
proposal. It continued to provide that laid-off employees, and
employees written up for “just cause” were excluded from us-
ing the grievance procedure. The Employer continued to pro-
pose examples of charges that constituted just cause, although
the list shifted somewhat from its November proposal. Some of
the less serious infractions—such as “customer complaint”—
had been removed from the definition of “just cause,” but oth-
ers had been added, including “disparagement or placing the
Company in a negative light via social media or on Company
property by any other means of publication.” The April 2 pro-
posal also included a list of infractions for which an employee
could be “written up,” including “distributing union literature
on Company time,” “attending a union meeting on Company’s
property,” and “attending a union meeting on Company time.”
The Union objected to the addition of these additional disci-
plinary bases, arguing to the Employer that they were illegal. It
also maintained throughout the negotiations that it would not
exclude employees (i.e., laid off, or employees charged with
“just cause” transgressions”) from being able to use the griev-
ance procedure.
Other articles were the subject of tentative agreements be-
tween the parties, but were changed by the Employer in its
April 2 final offer. For instance, the Employer and the Union
“TA’ed” a proposal on “Access to Premises” (art. 8) that gov-
erned access to the Employer’s premises by union agents.3
However, in its April 2, 2012 final offer, the Employer replaced
the TA’ed version of article 8 with a proposal that included
more restrictive access rights and prohibited the union repre-
sentatives from “soliciting union members” or “distribut[ing]”
union literature to employees on “Company time,” and prohib-
ited the union representatives from “hold[ing] meetings on
company property.”4 The Union objected at the bargaining
table to these changes to the proposal.

3 The agreed-to language of art. 8 stated:
Authorized agents of the Union shall have access to the Em-
ployer’s establishment during working hours, to investigate work-
ing conditions, collect dues, and inspect all time cards, log books
and other payroll records of the Employer, for the purpose of de-
termining whether or not the terms of this Agreement are being
complied with. The Employer will make such records available
within seven (7) days of the Union’s request and will provide a
suitable bulletin board exclusively for the Union’s use in a con-
spicuous place for posting of information and interest to the
members of the Union.
The Union representatives agree to follow the Company’s
prescribed safety and security regulations while on the Compa-
ny’s premises.
4 The revised “final offer” proposal on access stated:
After presenting themselves to the facility manager or super-
visor, and obtaining the facility manager’s or supervisor’s ap-
proval, which will not be unreasonably withheld, authorized
agents of the Union shall have access to the Employer’s estab-
The parties also remained in dispute throughout negotiations
over the Union’s proposal that required employees to join and
maintain membership (with provisions for objecting employees
to avoid membership and pay a service fee in lieu of member-
ship dues payments). The Employer proposed an “open” shop,
leaving employees free to choose whether to become members
and whether to pay any service fee at all to the Union.
While there were some tentative agreements, as of April 11,
2012, there was no agreement between the parties on wages or
holidays. There was no agreement on health care, as the Em-
ployer’s position was that it was not prepared to offer any
health care coverage at this time, and wanted to evaluate the
situation after the Affordable Health Care Act was in effect.
There was also no agreement on drug policy.
The Decertification Petition
Employee Ramiro Lopez, a longtime Latino Express em-
ployee, testified that in March 2012, he brought information to
the other drivers on the process for decertifying the Union. He
contacted an attorney from the Right-to-Work Foundation, and
with the assistance of employees Paul Penro and Tina Patitucci,
began collecting signatures for a decertification petition.
The petition calls for the decertification of the Local 777 and
lists 54 employee names with signatures.
Lopez, Penro, and Patitucci, each testified that they procured
all the signatures while standing off the property, across the
street from the exit to the facility parking lot. Lopez said he
began obtaining signatures after his work shift the afternoon of
March 21, 2012. He used a clipboard to hold the petition and
had copies in English and Spanish for employees. Penro de-
scribed parking his truck across the street from the Latino Ex-
press facility, while Patitucci stood at the facility exit and told
people to go to Penro’s truck if they wanted to sign the petition.
He also used a clipboard, and would sit in his truck while em-
ployees approached and opened up the passenger side door. He
would provide them information and the petition to sign. Most
of the signatures were dated March 21, 2012, but some (ap-
proximately 16) signatures were obtained March 22, 23, and
26, as well. All the signed pages were given to Lopez who
filed the petition with the Board in April.

lishment (although restricted to only areas where employees are
allowed, and specifically, there is no access to the second floor)
during normal working hours, for the purpose of determining
whether or not the terms of this Agreement are being complied
with by investigating working conditions, collecting dues, and in-
specting all log books and other payroll records of the Employer
as to Union members. The Employer will make such records
available within seven (7) business days of the Union’s written
request.
The Union representatives agree to follow the Company’s
prescribed safety and security regulations while on the Compa-
ny’s premises. Under no circumstances will the Union represent-
atives be paid by the employer.
Union representatives shall not interfere with the Company’s
business. Union representatives shall not solicit union members
or distribute union literature to Employees who are on Company
time. Union representatives shall not hold meetings on company
property.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD916
However, other witnesses described solicitations that oc-
curred on employer property. Raymond Deltoro, Sr., who has
worked as a driver for Latino Express for 15 years, described
being approached by Lopez, and agreeing to sign the petition
“In the parking lot where the buses are in the company.”5 For-
mer busdriver Vivian Brown, who was employed by Latino
Express from September 2010 to 2012, testified that in March
or April 2012, while she was preparing her schoolbus for a trip
(“pretripping” the bus), Lopez approached her at the garage on
the Employer’s facility, carrying a clipboard and “wanted me to
sign a form that said we didn’t need the union.” Brown de-
clined to sign, telling Lopez that “I had to think about things
before I signed anything.” Lopez told Brown “when I changed
my mind to come back and see him and sign the petition.”
Finally, union organizer Raymond Alvarez testified that on
or about March 20, 2012, at about 9 a.m., he hand-delivered a
letter from Glimco to Latino Express, about half an hour before
an employee safety meeting began in the dispatch area of the
facility. Alvarez entered the facility parking lot at the main
entrance and walked into the employee entrance of the facility.
During his time there, he observed Lopez and Penro standing at
the main entrance. They “had clipboards and they were follow-
ing the employees around trying to get them to sign it.” Alva-
rez was only on the property for a few minutes to deliver the
letter. Both as he entered and exited the building Lopez and
Penro yelled obscenities at him and followed him as he exited
the property. Alvarez remained on site, but off the property, for
most of the day. He observed Penro and Lopez (for a total time
of about 45 minutes to an hour) soliciting employees with their
clipboards on the facility property. Alvarez described watching
Penro “following employees out this west exit. There’s a gate
back here where the employees park, and he was following
them literally from the building all the way to their cars and
then going back in and engaging on the property.”6
Employee Raymond Deltoro Sr., testified that because of a
decline in charter assignments he resigned from Latino Express.
The date on which this happened is unclear, but it appears to
have been a Friday in late March or early April 2012. Before

5 At this point I must correct my own error. At the hearing Deltoro
identified the area of the parking lot where he signed the petition using
an aerial photo exhibit of the facility and lot. I am quoted in the tran-
script (Tr. 321) as describing the area Deltoro pointed to as “the north-
east corner of the building, outside the northeast corner of the build-
ing.” This is incorrect. It was the southeast corner of the building to
which Deltoro pointed. The northeast corner of the building does not
abut the parking lot, is not where the buses are parked, and, indeed, is
not visible in the exhibit. Both by memory and logic, it is clear to me
that Deltoro’s testimony that the petition was signed “[i]n the parking
lot where the buses are parked,” and the area he pointed to on the ex-
hibit, was by the southeast face of the building.
6 Lopez and Penro testified that they solicited off the property. The
implication (if not the express testimony) was they did not solicit on the
property during working hours. I found Alvarez, Deltoro, and Brown
credible in their presentation of the evidence. And significantly, the
Respondent called no witnesses to dispute any of this testimony. Nei-
ther Penro nor Lopez were called to the stand by the Respondent, and
neither disputed any of the testimony of Deltoro, Alvarez, or Brown. I
credit Brown, Deltoro, and Alvarez’ uncontradicted testimony, which,
in any event, was credibly offered.
his shift ended on that day. Deltoro told the office that it was
going to be his last day of work. After telling the office, Del-
toro ran into a Latino Express (admitted) supervisor and head
of maintenance, Victor Gabino, in the parking lot where the
buses are parked. Gabino asked Deltoro why he was leaving.
Deltoro told him he needed more work and Latino Express was
not giving it to him. Gabino told Deltoro that a group of em-
ployees had told Gardunio that Deltoro was “the brain” behind
the employees’ demand for a Union. Deltoro told Gabino that
this was a “lie.” Gabino then told Deltoro that it was “a lack of
communication” that was the cause of Deltoro being out of
work. Gabino encouraged Deltoro to talk with Latino Express,
and Deltoro said that “I don’t need to say anything. Latino
Express knows that I’m working very little. For all of 2011 I
worked very little.” Deltoro told Gabino that he “was not with
the union nor the company. The union hasn’t done anything for
me, and the company doesn’t give me work . . . that’s why I’m
not with anyone.” Gabino suggested that Deltoro should “de-
cide on whose side” he was going to be. Deltoro testified that
Gabino told him that it had been a “miscommunication. Let’s
see what we can do. I said that’s fine.”
Although Deltoro went through with his resignation, the new
job did not work out after the first day, and on Monday Deltoro
called the Latino Express dispatcher (and supervisor) Sara Mar-
tinez and said he was coming back to work. She told him that
she had already given away his routes to someone else but she
would see what she could find for him. When he returned
Tuesday, he was assigned different routes.
Deltoro further testified:
A week later Ramiro Lopez came up to me to put my
signature for something [saying] that we didn’t want a un-
ion—he had been insisting many times, but I didn’t want
to, but I said that’s fine, I’ll sign.
When I signed the paper I saw very few signatures,
and I told him is this all you have. No, and he showed me
five or six sheets like that with more signatures. I said
okay, that’s fine. He left. About 60 feet away he found
Victor. They spoke. I don’t know what they talked about.
After Ramiro left and I went to the office and Victor
approached me and told me let’s see the form that you
have. Let’s see what way we can have you have more
work. Let’s see what we can do to help you. There may
be a way in a charter. We can use it in the morning and
you can pick them up in the afternoon. Because of that
situation, because I couldn’t do it full-time because of my
work, I said that’s fine, thank you.
The next Saturday and the Saturdays after that they
gave me work. I had work. I’ve been working. That’s it.
Prior to this incident Deltoro had not been assigned any Sat-
urday charters.
The Withdrawal of Recognition
On April 24, 2012, Attorney Zane Smith, counsel for Latino
Express, received a letter from Attorney Matthew Muggeridge.
The letter stated that he was an attorney for the National Right
To Work Legal Defense Foundation, and that he represented
Latino Express employee Lopez. Muggeridge reported in his
LATINO EXPRESS, INC. 917
letter that Lopez had filed a decertification petition with the
Board. Muggeridge went on to state that
Mr. Lopez has proof in the form of petition sheets signed by a
majority of employees that the union no longer enjoys majori-
ty support among the employees. That being the case, the
employer is prohibited from any further negotiations with the
union. It is my understanding that contract negotiations are
ongoing between Latino Express and the Teamsters. Further
negotiations would be illegal.
That same day, Attorney Smith wrote to Glimco, enclosing
the petition and signatures—the record does not tell us who
provided the petition to the Employer—stating:
As evidenced by the attached petitions, the union no longer
enjoys majority support among employees. As a result there-
of our client, Latino Express, Inc., immediately withdraws
recognition of Teamsters Local 777 as the Collective Bargain-
ing Representative of its employees.
There were no further negotiations. By letter dated May 9,
2012, Attorney Smith wrote to Glimco, responding to a request
for negotiations from Gonzalez, stating that, “[p]ursuant to
union-representative] Gonazalez’ email of May 4, 2012, re-
questing further negotiations, we believe that any further nego-
tiations would be improper” due to the due to the decertifica-
tion petition. On May 17, Smith wrote Glimco stating that
“This will confirm our conversation of today in which I in-
formed you that our office would not agree to continue any
further negotiations with the Union in regard to the above mat-
ter.”
Unilateral Changes Postcertification and During Bargaining
May 2011 Changes to the Breakroom
Because the drivers’ typical route involved delivering stu-
dents to school in the morning and picking them up from school
in the afternoon, many drivers spent the interim period of the
day in the common area of the Employer’s facility. This com-
mon area served as a breakroom for employees who congregat-
ed there during the midday hiatus. In the wake of the Union’s
certification, and before negotiations commenced, an issue
arose when drivers complained to the Union that the Employer
had removed the pool table, large screen TV, and cable televi-
sion access from the employee “common area” or breakroom in
the facility.
Union President Glimco wrote to Gardunio (with a copy sent
to Zane Smith) on May 11, 2011, complaining about reports
that Latino Express had violated “status quo” requirements by,
among other things, removing a “pool table, screen television
and cable” from the common area of the facility, “[a] benefit
that had been given to all Latino Express workers.” On May
26, 2011, Latino Express Attorney Genson wrote back to
Glimco stating that:
the replacement of the 52” television with a 42” television, the
removal of the pool table, and the removal of the cable are not
‘terms or conditions of employment.’ Even if such were, with
the recent loss of Latino Express, Inc.’s ability to use other fa-
cilities to conduct meetings, the space taken up by the pool ta-
ble was required for meetings. In regards to the cable, some
drivers were refusing charters because they were watching a
good show on cable.
Attorney Genson, testified at the hearing that the common
room was needed to hold safety meetings. Previously the meet-
ings had been held at another location owned by a different
employer and that employer needed the space. Genson main-
tained at the hearing that these items were not “terms and con-
ditions of employment” and did not “have anything to do with
employment, it’s simply a convenience that’s there.”
The September 6, 2011 “welcome back” Letter
Latino Express issued a “welcome back” letter to drivers
dated September 6, 2011, while negotiations were ongoing, that
listed “a lot of rule changes from CPS [Chicago Public
Schools] and in this letter we are informing you about those
changes.” The letter listed rules on a wide array of topics.
Some of the rules and topics were the same as those listed in
the similar “welcome back” letter issued to drivers in Septem-
ber 2010. However, many were new or different from that
listed in 2010, and, in sum, constituted significant new rules
and policies for drivers to follow.7 Given the resolution of the
case, it is not necessary to list each change, but suffice it to say
that 20 of 28 items listed on the 2011 welcome-back letter con-
tain significant rule changes from the 2010 welcome-back letter
in areas as wide-ranging as dress requirements, route and driv-
ing responsibilities, and disciplinary rules. (Compare 2011
letter (GC Exh. 25) with the 2010 letter (GC Exh. 24).)
The Union was not notified before these changed items were
announced. No agreements were reached in bargaining regard-
ing these items as of the time of the issuance of the letter.
April 6, 2012 Implementation of the
Driver’s Accountable Act
On about April 6, 2012, and in the days thereafter, the Em-
ployer issued a notice announcing that “a new Driver’s Ac-
countable Act has been implemented at Latino Express.” The
notice explained the “Act” and provided for employees to sign
stating that “I [employee name] do her[e]by agree that I am
fully responsible for all damages which may occur from all
accidents that take place with the bus which is assigned to me
outside the times agreed upon in this contract. . . .” The text of
the letter stated that implementation of this rule was being
made “[d]ue to the serious problems we at Latino Express are
having [r]egarding accidents from drivers who use their bus
without authorization.” The letter continued:

7 I do not credit Gardunio’s testimony that these newly listed re-
strictions, policies and rules were “remind[ers]” of established rules
that “maybe some of the drivers . . . are not adhering to.” In the first
place, a number of the provisions represent changes from the policies
sent forth in the similar 2010 “welcome back” letter distributed to em-
ployees in September 2010. Second, the letter states that “there will be
a lot of rule changes” and that the letter is to “inform[ ] you about
those changes.” In other words, the stated purpose of the letter is to
describe changes in rules.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD918
Upon signing this act (agreement) you will take full re-
sponsibility for any or all accidents that happen outside
route times. Latino Express will cover all accidents that
take place during your route schedule or during authorized
times. These times include: leaving the base lot while
traveling directly to your first pick up point, or gas. Cov-
erage continues th[r]ough the morning route. If an un-
scheduled stop is made and the driver is not authorized to
do so, the driver will be held totally responsible for any
accident which may occur. Coverage will continue the
morning route until all the children have been taken direct-
ly to their designated school, whereupon the driver, unless
notified to continue on an additional job, will return di-
rectly to the base lot.
Latino Express will cover all authorized time errands,
late child pick-up.
All mid-day drivers and charter will adhere to the same
policies. All mid-day drivers and charter drivers will re-
port to the base before the designated run. No driver will
leave the Base unless authorized to do so by the base on-
ly.
(Original emphasis.)
In sum, according to this “new” policy—that, according to
the April 6 memo had already been “implemented,”—Latino
Express paid for damages caused by an accident during author-
ized driving. However, drivers were responsible for damages
occurring during unauthorized or “off” route times.
This was a significant change from the previous policy.
Thus, the September 2011 “welcome back” letter provided that:
16. Preventable accidents will be the financial responsibility
of the Driver. Unpreventable accidents will be the responsibil-
ity of the Company as long as proper procedures are taken.
(Based on $500 maximum charge to the employee, The
Company will charge the driver a maximum of $500 for any
accident, if the driver is fault, when damage are less than
$500.00 the driver will pay the remaining 25 %) DRIVERS
PLEASE ARE ADVISED IF YOU HAVE 2
PREVENTABLE ACCIDENTS, LATINO EXPRESS
INC. HAS THE RIGHT TO RELEIVE YOU FROM
YOUR DRIVING DUTIES. (ALL ACCIDENTS MUST
BE REPORT TO THE BASE [WH]ETH[E]R YOU
HAVE STUDENTS ON THE BUS ON NOT)
(Original emphasis.)
This 25/75-percent split was the policy admitted to by the
Employer to be in existence in February 2011, in a position
statement submitted in previous litigation. (“Pursuant to Latino
Express policy, any employee at Latino Express who is in-
volved in an accident is required to reimburse the company
25% of the costs of the damages caused to the bus by the acci-
dent. The Company picks up the other 75%.”) It was also the
policy found by the Board to be in existence at Latino Express
in recent litigation. Latino Express, 358 NLRB 823, 828
(2012).8

8 At the hearing, the Employer produced copies of the letter imple-
menting the Driver Accountable Act and signed by two employees in
The newly implemented Driver’s Accountable Act was also
a departure from the tentative agreement reached between the
parties in bargaining. After much discussion in negotiations
about who was to bear costs for accidents, the Employer had
agreed that drivers would not be charged for accidents. In the
face of that tentative agreement, which did not involve any
exception for accidents occurring on “unauthorized” driving,
the announcement and implementation of the Driver’s Ac-
countable Act was particularly surprising to the Union, and to
employees who had heard of the progress on this issue made in
negotiations.
Analysis
The complaint alleges three distinct violations of Section
8(a)(5) of the Act (and derivatively, of Sec. 8(a)(1) of the Act).9
First, an unlawful unilateral change in terms and conditions of
employment by implementing the driver’s accountable act, on
or about April 6, 2012. Second, overall bad-faith bargaining
between June 2010 and April 2012. Finally, an unlawful with-
drawal of recognition of the Union on or about April 24, 2012.
I. PARAGRAPH VI OF THE COMPLAINT
Unilateral Implementation of the
“Driver’s Accountable Act”
Board precedent has long been settled that, as a general rule,
an employer with an obligation to collectively bargain may not
make unilateral changes in mandatory subjects of bargaining
without first bargaining to a valid impasse. NLRB v. Katz, 369
U.S. 736 (1962). “For it is a circumvention of the duty to nego-
tiate which frustrates the objectives of § 8(a)(5) much as does a
flat refusal.” NLRB v. Katz, 369 U.S. at 743. “Unilateral action
by an employer without prior discussion with the union does
amount to a refusal to negotiate about the affected conditions of
employment under negotiation, and must of necessity obstruct
bargaining, contrary to the congressional policy.” Katz, supra at
747. “‘The vice involved in [a unilateral change] is that the

2006 and one in 2007. This was offered in support of Gardunio’s tes-
timony that this was a longstanding policy and the April 2012 form was
issued because there were many new drivers and they were unaware of
this longstanding policy. I cannot credit this claim. The evidence that
the 25/75 split policy was in effect—without any distinction being
drawn between accidents during authorized and unauthorized bus oper-
ation—is too strong. Contrary to Gardunio’s claim are the findings of
the Board in the previous case, the admissions of counsel in the previ-
ous case, the 2010 and 2011 “welcome back” memos, as well as the
testimony of employee and driver Garcia that he was required to sign
this policy for the first time in April 2012, and that it was his under-
standing that the employees were liable for 25 percent of all accidents
and that this was new policy that he had never seen before. All of this
establishes that the policy was newly implemented. In the face of that,
I do not believe Gardunio’s somewhat vague and confusing testimony
that the Driver Accountable Act was in force continuously for many
years. That policy may have been considered, and at least some em-
ployees apparently signed a letter acknowledging that policy in past
years. But there is no credible evidence that it was previously in effect
or enforced.
9 An employer’s violation of Sec. 8(a)(5) of the Act is also a deriva-
tive violation of Sec. 8(a)(1) of the Act. Tennessee Coach Co., 115
NLRB 677, 679 (1956), enfd. 237 F.2d 907 (6th Cir. 1956). See ABF
Freight System, 325 NLRB 546 fn. 3 (1998).
LATINO EXPRESS, INC. 919
employer has changed the existing conditions of employment.
It is this change which is prohibited and which forms the basis
of the unfair labor practice charge.” Daily News of Los Ange-
les, 315 NLRB 1236, 1237 (1994) (bracketing added) (quoting
NLRB v. Dothan Eagle, Inc., 434 F.2d 93, 98 (5th Cir. 1970)
(court’s emphasis)), enfd. 73 F.3d 406 (D.C. Cir. 1996), cert.
denied 519 U.S. 1090 (1997).
Where, as here, negotiations for a collective-bargaining
agreement are ongoing “an employer’s obligation to refrain
from unilateral changes extends beyond the mere duty to give
notice and an opportunity to bargain; it encompasses a duty to
refrain from implementation at all, unless and until an overall
impasse has been reached on bargaining for the agreement as a
whole.” Bottom Line Enterprises, 302 NLRB 373, 374 (1991)
(footnote omitted), enfd. mem. 15 F.3d 1087 (9th Cir. 1994).
As set forth above, on or about April 6, 2012, during the time
that negotiations were ongoing, the Respondent announced the
implementation of a “Driver’s Accountable Act” that changed
the Respondent’s policy regarding employee financial respon-
sibility for accidents. The Union was not notified in advance of
this change in what is an indisputably mandatory subject of
bargaining. And although the issue had been a subject of dis-
cussion in negotiations, the implemented policy had never been
mooted by the Respondent. Thus, the implemented policy was
not part of a pre-impasse offer that could be unilaterally im-
plemented upon an overall bargaining impasse. Taft Broad-
casting, Co., 163 NLRB 475, 478 (1967) (“after bargaining to
an impasse, that is, after good-faith negotiations have exhausted
the prospects of concluding an agreement, an employer does
not violate the Act by making unilateral changes that are rea-
sonably comprehended within his pre-impasse proposals”),
review denied 395 F.2d 622 (D.C. Cir. 1968). In any event,
there is no evidence, or claim, that the parties had reached a
valid good-faith bargaining impasse as of the date of the im-
plementation.
The Respondent’s implementation of the Driver’s Accounta-
ble Act violated Section 8(a)(1) and (5) of the Act as alleged.
II. PARAGRAPH VII OF THE COMPLAINT
Overall Bad-Faith Bargaining
Section 8(a)(5) of the Act provides that it is an unfair labor
practice for an employer “to refuse to bargain collectively with
the representatives of his employees.” Section 8(d) of the Act
defines the duty to bargain collectively as “the performance of
the mutual obligation of the employer and the representative of
the employees to meet at reasonable times and confer in good
faith with respect to wages, hours, and other terms and condi-
tions of employment.” A “mere pretense at negotiations with a
completely closed mind and without a spirit of cooperation
does not satisfy the requirements of the Act.” Mid-Continent
Concrete, 336 NLRB 258, 259 (2001), enfd. 308 F.3d 859 (8th
Cir. 2002).
“In determining whether a party has violated its statutory du-
ty to bargain in good faith, the Board examines the totality of
the party’s conduct, both at and away from the bargaining ta-
ble.” Public Service Co., 334 NLRB 487, 487 (2001) (internal
citations omitted), enfd. 318 F.3d 1173 (10th Cir. 2003). From
a party’s total conduct both at and away from the bargaining
table, the Board determines whether the party is “engaging in
hard but lawful bargaining to achieve a contract that it consid-
ers desirable or is unlawfully endeavoring to frustrate the pos-
sibility of arriving at any agreement.” Id.
It is a statutory requirement that good-faith bargaining “does
not compel either party to agree to a proposal or require the
making of a concession.” 29 U.S.C. § 158(a)(5). At the same
time, the employer is “obliged to make some reasonable effort
in some direction to compose his differences with the union, if
[Section] 8(a)(5) is to be read as imposing any substantial obli-
gation at all.” Atlanta Hilton & Tower, 271 NLRB 1600, 1603
(1984) (Board’s emphasis), citing NLRB v. Reed & Prince,
Mfg., 205 F.2d 131, 135 (1st Cir. 1953), cert. denied 346 U.S.
887 (1953).
“Although the Board does not evaluate whether particular
proposals are acceptable or unacceptable, the Board will exam-
ine proposals when appropriate and consider whether, on the
basis of objective factors, bargaining demands constitute evi-
dence of bad-faith bargaining.” Public Service Co., supra at
487–488, citing Reichhold Chemicals, 288 NLRB 69 (1988),
affd. in relevant part 906 F.2d 719 (D.C. Cir. 1990), cert. de-
nied 498 U.S. 1053 (1991). Further, an inference of bad-faith
bargaining is appropriate when the employer’s proposals, taken
as a whole, would leave the union and the employees it repre-
sents with substantially fewer rights and less protection than
provided by law without a contract. In such circumstances, the
union is excluded from the participation in the collective-
bargaining process to which it is statutorily entitled, effectively
stripping it of any meaningful method of representing its mem-
bers in decisions affecting important conditions of employment
and exposing the employer’s bad faith. See A-1 King Size
Sandwiches, 265 NLRB [850[,] 859 [(1982), enfd. 732 F.2d
872 (11th Cir. 1984), cert. denied 469 U.S. 1035 (1984)]. Pub-
lic Service Co., supra at 487–488 (footnote omitted); Coastal
Electric Cooperative, 311 NLRB 1126, 1127 (1993) (in as-
sessing bad-faith bargaining, “an examination of the proposals
is not to determine their intrinsic worth but instead to determine
whether in combination and by the manner proposed they evi-
dence an intent not to reach agreement”).
In this case, the General Counsel contends that the Respond-
ent bargained in overall bad faith from the commencement of
negotiations in June 2011 through April 2012. In advancing
this argument, the General Counsel relies upon indicia of bad-
faith bargaining both at and away from the bargaining table.
However, as discussed herein, I find the case to be unconvinc-
ing as it pertains to the period prior to April 2012. However, as
of April 2012, I find the contention of bad-faith bargaining very
compelling.
As discussed above, bargaining began in June 2011. The
parties met two to three times monthly through November (but
four times in July), and then once in December and once in
January 2012, twice in February, twice in March, and three
times in April.
The Union provided the Respondent with a proposal on non-
economic issues at the first session on June 10. This was a
basis for discussion for many of the sessions. The Respondent
did not provide counterproposals until November 2011. Many
tentative agreements were reached between June and January
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD920
2012, but many key issues remained in dispute. For instance,
as of January 2012, tentative agreements were reached on union
officials’ access to the employer’s premise, and there was
agreement on charter work (including the union’s agreement
that nonunit mechanics could drive charters that were more
than 100 miles in distance). The parties remained in dispute
throughout negotiations over the Union’s proposal that required
employees to join and maintain union membership (with provi-
sions for objecting employees to avoid membership and pay a
servicing fee). No tentative agreements were ever reached on
wage or holidays among other significant items.
Notably, with one exception, the General Counsel’s argu-
ment for bad-faith bargaining does not rely on the details of
events at the meetings during June through January 2012. The
exception is the parties’ dispute over “just cause” for discipline.
In November 2011, the Employer made good on its contention
at the bargaining table that “just cause” should be defined in the
contract, and proposed a counterproposal doing just that. The
Employer’s counterproposal excluded employees “written up
based on just cause” from using the grievance procedure, and
excluded laid-off employees from the grievance procedure.
The proposal defined just cause to include, but not be limited
to, an array of 20 offenses ranging from “committing a sex
crime” to “failing to adhere to safety rules,” and “customer
complaint,” thus proposing that an employee disciplined or
discharged for such an alleged violation had no recourse to the
grievance procedure.
However, I am unwilling to find that the Employer’s initial
definition of “just cause” or its exclusion of employees written
up for just cause offenses, or laid-off employees, from the
grievance procedure, is, by itself, an indicia of bad-faith bar-
gaining. In this regard I note that the Employer’s proposal did
not contain a no-strike proposal. Without that—and one could
not reasonably be implied where the scope of the proposed
grievance procedure was so narrow—there is no basis for argu-
ing that the Employer’s November 22 just cause provision evi-
denced bad faith. As evidence of bad-faith bargaining, an em-
ployer’s insistence on an ineffective grievance procedure—or
no grievance procedure—usually requires a concomitant de-
mand that employees waive the right to strike. Without such
linkage, it is difficult to argue that employee is left with fewer
rights under the labor agreement than it would under law. See
San Isabel Electric Services, 225 NLRB 1073, 1079 fn. 7
(1976); Target-Rock, 324 NLRB 373, 386 (1997), enfd. 172
F.3d 921 (D.C. Cir. 1998).
The away-from-the-table indicia of bad-faith bargaining re-
lied upon by the General Counsel to make his case is also quite
limited during this pre-April 2012 period. The sum of it is two
instances of unilateral changes: the unilateral changes to the
break room in May 2011, and the unilateral changes in the 2011
“welcome back” letter.
It is well-settled that unilateral changes may be an indicia of
a lack of good-faith bargaining. Whitesell Corp., 357 NLRB
1119, 1123 (2011); Bryant & Stratton Business Institute, 321
NLRB 1007, 1044 (1996) (unilateral changes may reflect on
the Respondent’s intent not to bargain in good faith). Moreo-
ver, the fact that these two unilateral changes relied upon by the
General Counsel were not pled as violations of the Act—
because of concerns related to Section 10(b) of the Act (see GC
Br. at 20 fn. 3)—is not significant. It is settled that conduct that
is not an independent unfair labor practice may still support a
finding of overall bad-faith bargaining. Universal Fuel Inc.,
358 NLRB 1504, 1504 (2012) (“unnecessary to determine
whether any of the individual acts just described was unlawful
in and of itself. Instead, the Respondent’s conduct, as a whole,
supports the judge’s determination that the Respondent was not
bargaining in overall good faith and thereby constitutes a viola-
tion of Section 8(a)(5)”); Houston County Electrical Coopera-
tive, 285 NLRB 1213 (1987).
However, as evidence of overall bad-faith bargaining during
the June 2011 through March period, these two unilateral
changes cannot carry the load they are assigned in the General
Counsel’s case. Although the General Counsel cites no case on
point, I agree, and will assume, that the May 2011 removal of
the pool table, elimination of cable channels, and reduction of
TV size from the breakroom constitute material changes in a
mandatory subject of bargaining that should have been bar-
gained with the Union. It has long been held that food and
beverage service, parking privileges, and other such benefits
are mandatory subjects of bargaining. Here, the breakroom,
with its accoutrements, provided a place for workers to remain
on site in between morning and afternoon bus runs, a benefit
for both employees and the employer. I note however, that as
an alleged indicia of overall bad-faith bargaining, this incident
is weakened by the fact that it occurred prior to the time that
collective bargaining began and prior to the time period during
which the General Counsel is alleging overall bad-faith bar-
gaining. The overall bad-faith bargaining is alleged to have
occurred from June 2011 to April 2012. The breakroom chang-
es occurred in May 2011. So while the unilateral breakroom
changes were wrongly undertaken, they serve only as back-
ground to the Respondent’s bargaining conduct during the June
2011 through April 2012 time period at issue.
This leaves the more significant changes in terms and condi-
tions set forth in the 2011 welcome-back letter, These consti-
tuted indisputable and in many cases significant changes in
terms and conditions of employment.10 Had a timely charge
been brought, the failure to notify the Union and bargain to an
overall impasse before implementing these changes would cer-
tainly have been violative of the Act. Thus, this unilateral
change, like the May 2011 change to the breakroom, demon-
strates a lack of commitment to the bargaining process by the
Respondent. However, as discussed above, the evidence for
overall bad-faith bargaining—as evidenced in the collective
bargaining for a new agreement—is nonexistent prior to April

10 I note that Gardunio’s contention that the changes were required
by the Chicago Public school system rules is (1) largely not true and (2)
irrelevant. While some of the changes may have been attributable to
school requirements—no evidence for this was supplied—many clearly
were not. Thus, rates of pay, penalties, and discipline, are unlikely to
be dictated by the school system. No evidence was presented by the
Respondent to allow a determination of which rule changes were re-
quired by the Chicago Public School contract. In any event, it is irrele-
vant. Even if required by the contract with the Chicago Public Schools,
such changes were still subject to bargaining if, as here, they were
otherwise mandatory subjects of bargaining.
LATINO EXPRESS, INC. 921
2012. These two away-from-the table indicium of bad-faith
bargaining—one occurring before collective bargaining be-
gan—are inadequate, particularly given the dearth of evidence
about the bargaining itself—to prove overall bad-faith collec-
tive bargaining during the period June 2011 through March
2012. Rather, they simply provide evidence of two discrete
unilateral changes in terms and conditions of employment
that—had they been pled as violations—would have been the
basis for a violation of the Act.
I find that the evidence is insufficient to permit the conclu-
sion that there was overall bad-faith bargaining demonstrated in
the June 2011 through March 2012 period.11
The picture changed, however, on April 2, 2012, with the
Respondent’s submission of its final proposal.
The Employer’s final offer, provided to the Union on April
2, 2012, contained a proposal on discharge, suspension, and
other disciplinary action that was similar to its November 2011
proposal. However, it added new conditions constituting just
cause for discharge or for discipline that are clearly unlawful
under Board precedent, including “disparagement or placing
the Company in a negative light via social media or on Compa-
ny property by any other means of publication.”12 The April 2
proposal also included a list of infractions for which an em-
ployee could be “written up,” including “distributing union
literature on Company time,” “attending a union meeting on

11 The General Counsel also contends that Gardunio’s lack of in-
volvement in negotiations—while the Respondent’s negotiators made
clear that Gardunio must approve all contract provisions—provides
evidence of bad-faith bargaining. However, the record is simply too
limited to demonstrate that Gardunio’s failure to attend the negotiations
until February 2012 hindered the negotiations in any substantial re-
spect.
12 Rules penalizing “disparagement or placing the Company in a
negative light via social media or on Company property by any other
means of publication” constitute an unlawful overly-broad restriction
on employees’ rights. Costco Wholesale Corp., 358 NLRB 1100
(2012) (prohibition on posted statements “that damage the Company,
defame any individual or damage any person’s reputation” unlawfully
overbroad. See also Southern Maryland Hospital, 293 NLRB 1209,
1222 (1989) (rule against “derogatory attacks on hospital representa-
tives” unlawful), enfd. in relevant part 916 F.2d 932, 940 (4th Cir.
1990) (“By permitting the punishment of employees for speaking badly
about hospital personnel, the employer ‘failed to define the area of
permissible conduct in a manner clear to employees and thus cause[d]
employees to refrain from engaging in protected activities’” (quoting
American Cast Iron Pipe v. NLRB, 600 F.3d 132, 137 (8th Cir. 1979));
Claremont Resort & Spa, 344 NLRB 832, 832 (2005) (“rule’s prohibi-
tion of ‘negative conversations’ about managers would reasonably be
construed by employees to bar them from discussing with their
coworkers complaints about their managers that affect working condi-
tions, thereby causing employees to refrain from engaging in protected
activities. Accordingly, the rule is unlawful”); Beverly Health & Reha-
bilitation Services, 332 NLRB 347, 348, 356–357 (2000) (rule prohibit-
ing “false or misleading work-related statements concerning the com-
pany, the facility, or fellow associates” is unlawful), enfd. 297 F.3d 468
(6th Cir. 2002); Knauz BMW, 358 NLRB 1754, 1754 (2012) (“courte-
sy” rule prohibiting “disrespectful” conduct unlawful); Cincinnati
Suburban Press, 289 NLRB 966 fn. 2, 975 (1988) (rule prohibiting
false statements unlawful).
Company’s property,” and “attending a union meeting on
Company time.”13
The Respondent maintained these facially unlawful pro-
posals until it withdrew recognition from the Union on April
24. This is bad-faith bargaining. I accept the contention of the
Respondent’s witness Attorney Genson that this was not neces-
sarily the final proposal the Respondent was willing to give to
the Union (had it not withdrawn from bargaining altogether). A
“final” proposal—which is what this was called and what it
was—is indicative of, and consistent with, but not always con-
clusive evidence of insistence. But the proof, so to speak, is in
the pudding. This was, in fact, the Employer’s final proposal,
until it (unlawfully, as discussed below) withdrew recognition.
Accordingly, from April 2, 2012, forward—until the Respond-
ent unlawfully withdrew recognition—the Respondent was
demanding acceptance of unlawful proposals as a condition of
entering into a labor agreement. Moreover, the inference of
bad- faith bargaining is heightened by the fact that these facial-
ly unlawful and regressive bargaining demands were introduced
suddenly after months of negotiations and three months after
the Employer’s initial counterproposal.14
Another indicia of bad-faith bargaining that may be found in
the Respondent’s final proposal is in its withdrawal without
legitimate explanation from tentative agreements already
reached between the parties. The parties had tentatively agreed
to the language governing the scope of work to be covered by
the labor agreement, language proposed by the Union in June
2011. This included charter work which was a significant
source of income for drivers and the distribution of charter
work was a significant issue for the employees. For the first
time, in the Respondent’s final proposal, the Respondent pro-
posed wholesale removal of charter work from coverage of the
agreement.

13 See Laidlaw Transit, Inc., 315 NLRB 79, 82 (1994) (policy pro-
hibiting solicitation or distribution “on company property, on company
time” presumptively unlawful); NLRB v. Chicago Metallic Corp., 794
F.2d 527, 533 (9th Cir. 1986).
14 The Board has stated that “Regressive bargaining . . . is not un-
lawful in itself; rather it is unlawful if it is for the purpose of frustrating
the possibility of agreement.” U.S. Ecology Corp., 331 NLRB 223, 225
(2000), enfd. 26 Fed. Appx. 435 (6th Cir. 2001), citing McAllister
Bros., 312 NLRB 1121 (1993); see also Houston County Electric Co-
operative, 285 NLRB at 1214 (regressive bargaining tactics that are
“designed to frustrate bargaining” are “an indicium of bad-faith bar-
gaining”). The Respondent’s bargainer, Attorney Genson, attempted to
explain regressive proposals limiting union representatives from hold-
ing meetings or distributing union literature to employees “on company
time,” as a consequence of what she claimed was the union’s “crash-
ing” of an employee safety meeting. I note that there was no record
evidence of such misconduct by the Union that would justify such a
change in proposal by the Employer, and thus, the proposal is evidence
of bad-faith regressive bargaining. But even more significantly, there
was no explanation at all offered for the Respondent’s addition to its
disciplinary proposal in its final offer of the blatantly unlawful provi-
sion threatening employees with discipline for conducting protected
activity on “company time.” Given the unlawful nature of the pro-
posals, the only motive appears to be retaliatory and cannot be justified
as a legitimate response to events at the plant.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD922
It is well settled that “[t]he withdrawal of a proposal by an
employer without good cause is evidence of a lack of good-
faith bargaining by the employer in violation of Section 8(a)(5)
of the Act where the proposal has been tentatively agreed upon
. . . .” Driftwood Convalescent Hospital, 312 NLRB 247, 252
(quoting Mead Corp. v. NLRB, 697 F.2d 1013 (11th Cir.
1983)), enfd. 67 F.3d 307 (9th Cir. 1995). Here, there is no
legitimate explanation for this drastic, abrupt, and late effort to
remove a significant part of the traditional bargaining unit em-
ployees’ work from the scope of the agreement. It is behavior
completely at odds with that of an employer seeking to that is
pursuing its statutory obligation “to make some reasonable
effort in some direction to compose his differences with the
union.” Atlanta Hilton & Tower, 271 NLRB 1600, 1603
(1984), citing NLRB v. Reed & Prince Mfg., 205 F.2d 131, 135
(1st Cir. 1953), cert. denied 346 U.S. 887 (1953).15
Finally, I note the Respondent’s refusal to propose any
health care. While there is no requirement that an employer
provide health care, it is a mandatory subject of bargaining. At
the hearing, the Respondent’s explanation made clear that its
“non-proposal” was a further indicia of bad faith. As explained
by Genson, “the issue with the health insurance was . . . that
Obamacare was going to get kicked in and we said that . . . we
kind of got to hold off a little bit to figure out what’s going on
with that. And so it wasn’t we’re not ever going to provide it
. . . its we’re going to comply with whatever comes up . . . .
There was no agreement as to it because of the issue that was
going on in the country.” As Genson explained, the Respond-
ent was not saying “we’re not going to provide it” but was
awaiting the implementation of “Obamacare” before it would
be willing to reach any agreement on health care benefits.
We are all waiting to see the implications of the Affordable
Care Act. But the duty to bargain is not suspended until it is
fully implemented and all its implications clear. The Respond-
ent had a statutory duty to bargain over health care in the nego-
tiations, not at some future time of its choosing. Its position is
that there would not be any “agreement as to it” as it awaited
the rollout of the new law is an admission of a refusal to bar-
gain over a mandatory subject of bargaining. Although not
pled as a per se violation of the duty to bargain, it is surely one
more indicia of the bad faith that the Employer brought to the
negotiations.
As to away-from-the table evidence during this period, as
discussed above, the implementation of the “Driver’s Account-
able Act” on or about April 6, 2012, constituted an unlawful
unilateral implementation and supports the overall failure to
bargain case. See Whitesell Corp., supra; Bryant & Stratton
Business Institute, supra. This unlawful implementation oc-
curred just days after the Respondent’s final proposal, at a time
when the parties were still in the midst of bargaining, although

15 The suggestion of bad faith is more not less pronounced by the
fact that the parties had extensively bargained about charters and agreed
that nonunit mechanics could drive charters that took the buses more
than 100 miles from the facility. It is nonsensical to suggest, as the
Respondent’s witness did at trial, that this agreed-upon concession by
the Union provided justification, or required as a matter of conforming
language to this agreement, the wholesale elimination of charter work
from the scope of the labor agreement and from the bargaining unit.
some of Gardunio testimony about it provides specific support
for the General Counsel’s claim that the Respondent had al-
ready dispensed with the bargaining process by this time. Gar-
dunio testified that when the driver’s accountable act forms
were issued (April 6, 2012), “We no longer had negotiations.
There were no more negotiations going on and then this form
came out. . . . We weren’t even talking anymore.” This consti-
tutes an admission that the unilateral implementation of the
driver’s accountable act was undertaken in lieu of and in dero-
gation of the duty to bargain and renders the implementation of
the driver’s accountable act particularly supportive of the over-
all bad-faith bargaining allegation.
The other “away-from-the-table” evidence relied upon by the
General Counsel as support for its bad-faith bargaining claim is
the Respondent’s actions with regard to the decertification peti-
tion. However, the fact that the decertification petitioner
Lopez and his coemployees Penro and Patitucci collected sig-
natures on the premises, and not only—as they described in
their testimony—across the street from the facility—does not
prove that Respondent illicitly collaborated in the petition
drive. On the other hand, Gabino’s rewarding of employee
Deltoro with charter work because of his willingness to be on
the Employer’s “side” in the decertification campaign does
evidence illicit Employer involvement. Such conduct by a
supervisor of the Respondent is clearly unlawful, though not
independently alleged as such. It does provide “away-from-
the-table” evidence of bad-faith bargaining as a decertification
petition has a “foreseeable effect of obstructing the bargaining
process.” Wahoo Packing Co., 161 NLRB 174, 179 (1966).
The Respondent’s illicit support for the petition is an indicia of
bad-faith bargaining. Id.; see also Top Job Building Mainte-
nance Co., 304 NLRB 902, 907 (1991) (“It is well settled that
an employer violates Section 8(a)(5) and (1) of the Act when its
supervisor who is not a member of the bargaining unit solicits
employee signatures to a document seeking to deauthorize a
union as a collective-bargaining representative”).
In sum I find that the allegation of overall bad-faith bargain-
ing is proven—but only for the period beginning April 2, 2012.
It was then that the Respondent’s regressive bargaining, asser-
tion of unlawful proposals in its final offer, final insistence on
not bargaining over health care, its unlawful unilateral imple-
mentation (a few days later) of the driver accountable act, and
its support for the decertification petition, occurred.
I further note that, viewing the circumstances in their totality,
it is more likely than not—and I find—that the sudden unveil-
ing of the regressive, tentative-agreement breaking, and unlaw-
fully provisioned final offer on April 2, 2012, represented a
purposeful and conscious effort by the Respondent to under-
mine the possibility of progress at the negotiating table. As
evidenced by Gabino’s actions with Deltoro, the Respondent
was aware of the decertification petition around this time, and
probably—given the evidence of Lopez and Penro’s solicitation
in open view on company property—was aware of it as of
March 21. With the decertification process in motion it strikes
me as no coincidence, but rather, a goal of the Respondent to
foreclose any possibility of reaching an agreement before the
upcoming end of the certification year. The Respondent’s final
offer made sure of that.
LATINO EXPRESS, INC. 923
The Respondent violated Section 8(a)(1) and (5) of the Act
by its overall bad-faith bargaining without intent to reach an
agreement beginning April 2, 2012.
III. PARAGRAPH XIII OF THE COMPLAINT
WITHDRAWAL OF RECOGNITION
Based solely on its receipt of the decertification petition, the
Respondent withdrew recognition from the Union on April 24,
2012.
The General Counsel contends that the withdrawal of recog-
nition was unlawful. He offers three independent grounds for
finding that the decertification petition cannot justify the Re-
spondent’s withdrawal of recognition from the Union. First,
the General Counsel argues that the Respondent’s unlawful
bargaining tainted the petition. Second, the General Counsel
contends that the petition is an inadequate basis on which to
withdraw recognition because the petition was signed by em-
ployees during the Union’s certification year, and, argues the
General Counsel, the Employer was aware of the petition dur-
ing the certification year. According to the General Counsel,
this precludes reliance on the petition as a valid basis for with-
drawal of recognition. Third, the General Counsel argues that
the Respondent was required but failed to prove that the peti-
tion demonstrated a loss of majority support, primarily because
of the failure of the Respondent to authenticate the petition’s
signatures. The General Counsel contends that based on these
arguments, the Respondent violated Section 8(a)(1) and (5) of
the Act when it withdrew recognition from the Union based on
the petition.
The General Counsel’s first argument is rendered a thin
reed—or at least, a more complicated one—on which to rest its
argument, as I have found that the bad-faith bargaining did not
commence until April 2, 2012, after collection of the decertifi-
cation signatures in March. However, I need not reach this
argument because the General Counsel’s remaining arguments
compel the result that the petition did not legitimatize the with-
drawal of recognition on April 24.
A. The Petition was Generated During the Certification
Year, and Therefore, Cannot Provide a Basis for
Withdrawal of Recognition after the Certification Year
The precondition for a union’s service as a bargaining unit’s
exclusive representative is the existence of majority support for
the union within the unit. Auciello Iron Works, Inc. v. NLRB,
518 U.S. 581, 785–786 (1996). This reflects “the Act’s clear
mandate to give effect to employees’ free choice of bargaining
representatives.” Levitz Furniture Co. of the Pacific, 333
NLRB 717, 720 (2001). However,
[t]he Board has also recognized that, for employees’ choic-
es to be meaningful, collective-bargaining relationships must
be given a chance to bear fruit and so must not be subject to
constant challenges. Therefore from the earliest days of the
Act, the Board has sought to foster industrial peace and stabil-
ity in collective-bargaining relationships, as well as employee
free choice, by presuming that an incumbent union retains its
majority status.
Levitz, supra at 720.
The presumption of majority support is usually rebuttable,
but in some periods of a collective-bargaining relationship it is
conclusive. One such period is during the first year after certi-
fication. “To foster collective bargaining and industrial stabil-
ity, the Board has long held that a certified union’s majority
status ordinarily cannot be challenged for a period of one year.”
Chelsea Industries, 331 NLRB 1648, 1648 (2000), enfd. 285
F.3d 1073 (D.C. Cir. 2002).
After expiration of the certification year, an “employer may
rebut the continuing presumption of an incumbent union’s ma-
jority status, and unilaterally withdraw recognition,” but “only
on a showing that the union has, in fact, lost the support of a
majority of the employees in the bargaining unit.” Levitz Fur-
niture Co., 333 NLRB 717, 725 (2001). As the Board in Levitz,
supra at 725, explained, an employer’s resort to “self-help”
measures to reject its employees’ unionization (i.e., a unilateral
withdrawal of recognition) carries some risk for the employer:
[A]n employer with objective evidence that the union has
lost majority support—for example, a petition signed by a
majority of the employees in the bargaining unit—withdraws
recognition at its peril. If the union contests the withdrawal of
recognition in an unfair labor practice proceeding, the em-
ployer will have to prove by a preponderance of the evidence
that the union had, in fact, lost majority support at the time the
employer withdrew recognition. If it fails to do so, it will not
have rebutted the presumption of majority status, and the
withdrawal of recognition will violate Section 8(a)(5).
The question here is whether the Respondent proved by a
preponderance of the evidence that the Union had, in fact, lost
majority support at the time the employer withdrew recognition
on April 24, 2012.
Its evidence was the petition for decertification signed by
employees over 1 month before, in March 2012, during the
period in which the certification bar was in effect. I agree with
the General Counsel that this poses a legally fatal problem for
the Respondent’s withdrawal of recognition.
The Board held in Chelsea Industries, 331 NLRB 1648
(2000), enfd. 285 F.3d 1073 (D.C. Cir. 2002), that proof of loss
of majority support justifying withdrawal of recognition may
not be demonstrated “after expiration of the certification year
. . . on the basis of an antiunion petition circulated and present-
ed to the employer during the certification year.” In its ruling,
the Board expressly endorsed the reasoning and validity of the
holding in United Supermarkets, 287 NLRB 119, 120 (1987),
enfd. 862 F.2d 549 (5th Cir. 1989). In United Supermarkets,
the Board held that just as a decertification petition filed with
the Board to during a certification year cannot provide a basis
for a decertification election, an employer cannot not rely on a
decertification petition filed prior to the end of the certification
year to justify its withdrawal of recognition:
Although it is true that the Respondent delayed formally
withdrawing recognition from the Union until the certification
year expired, it is also true that the Respondent relied in part
on this prematurely filed petition to support its withdrawal.
We believe that just as the petition could not raise a question
concerning representation nor be acted on by the Respondent
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD924
within the certification year, the Respondent cannot subse-
quently rely on it to justify a more timely withdrawal of
recognition.
287 NLRB at 120.16
In this case, the Respondent acted to withdraw recognition
just days after the expiration of the certification year bar based
on a petition that was circulated and signed by employees dur-
ing the certification year. This is not permitted pursuant to
United Supermarkets, reaffirmed by the Board in Chelsea In-
dustries. It is an independent violation of Section 8(a)(1) and
(5) of the Act for the Respondent to withdraw recognition
based on such a petition.
In his brief, the General Counsel goes to great lengths to ar-
gue that—contrary to the claims of the Respondent’s witnesses
and the denials of the employees involved in the solicitation of
the decertification petition—the Respondent must have re-
ceived a copy of the petition prior to the expiration of the certi-
fication year on April 18, 2012. The evidence does not permit
me to draw that conclusion. It is however, undoubtedly true
that the Respondent had knowledge of the petition during the
certification year. Thus, Gabino’s actions in “incentivizing”
Deltoro to support the petitioners provides direct evidence that
he was aware of the petition drive and illegitimately invoked
the power of the employer to control scheduling to coerce sup-
port for the decertification drive. Gabino was the chief me-
chanic, and an admitted agent and supervisor of the Respond-
ent. His knowledge of the petition drive during the certification
year is appropriately imputed to the Respondent.17
I should add, however, that in my view, and pursuant to the
Board’s ruling in United Supermarkets, reaffirmed in Chelsea
Industries, whether or not the Respondent knew of the petition
during the certification year, it is precluded from relying on it
to withdraw recognition after the expiration of the certification
year. During the certification year majority support is conclu-
sively presumed and as a matter of Board policy evidence to the
contrary is not recognized. Indeed, any other policy would fail
to give full conclusive effect to the initial certification year
presumption of majority support. As the Board in Chelsea
Industries recognized, the conclusive presumption of majority
support during the certification year is more strictly enforced
than other bars to question of representation. Thus, the Board
in Chelsea Industries ruled that, unlike contract bar situation,
where evidence of a lack of majority support during the term of
an extant collective bargaining agreement permits an “anticipa-

16 The Board in United Supermarkets also held that the withdrawal
of recognition was unlawful because the decertification petition in that
case was tainted by employer unfair labor practices. However, lest
there be any confusion, the Board in Chelsea Industries explained that
there were two holdings in United Supermarkets. The Board explained
that the ruling in United Supermarkets precluding withdrawal of recog-
nition based on evidence from within the certification year was one of
“two central holdings” in the United Supermarkets case and the two
holdings “‘stand independent’ of each other.” 331 NLRB at 1649
(internal quotations omitted).
17 State Plaza, 347 NLRB 755, 756 (2006) (supervisor’s knowledge
of union activity appropriately imputed to employer); Dobbs Interna-
tional Services, 335 NLRB 972, 973 (2001).
tory” announcement of a withdrawal once the agreement ex-
pires, in the initial certification situation the same evidence
does not permit a subsequent withdrawal of recognition. In
reaching this result, the Board in Chelsea Industries recognized
that “there are important differences between” the contract bar
rule situation—which occurs “during the term of a collective-
bargaining agreement and in the context of an established col-
lective bargaining relationship” (331 NLRB at 1650)—and the
situation of the initial certification year bar.18
The reasons for strict adherence to the certification bar rule
cited by the Board in Chelsea Industries were the same reasons
cited by the Supreme Court when it approved the Board’s certi-
fication year bar rule in Brooks v. NLRB, 348 U.S. 96 (1954):
first, the rule is necessary “to give a union ‘ample time for car-
rying out its mandate on behalf of its members [without]
be[ing] under exigent pressures to produce hothouse results or
be turned out’” and second, “to deter an employer from violat-
ing its duty to bargain: ‘It is scarcely conducive to bargaining in
good faith for an employer to know that, if he dillydallies or
subtly undermines, union strength may erode and thereby re-
lieve him of his statutory duties at any time. . . .’” Chelsea
Industries, 331 NLRB at 1648, quoting Brooks, 348 U.S. at
100.
Notably, the first of these two reasons cited in Chelsea In-
dustries for rejecting reliance on evidence of minority support
marshaled during the certification year applies whether or not
the employer was aware of the premature petition evidence
during the certification year. Thus, the Board and the Supreme
Court agree that employee dissatisfaction should not be a con-
cern for the union during the certification year. However, it
necessarily will be if dissatisfaction during the certification
year can later be relied upon to justify a withdrawal of recogni-
tion. Thus, even without employer knowledge of a certification
year decertification petition, the fact that it was garnered during
the certification bar precludes its use for an employer’s unilat-
eral withdrawal of recognition after the expiration of the certifi-
cation bar.19

18 The Board in Chelsea Industries explained that, unlike the con-
tract bar situation,
in the first year following the union’s certification, negotiations of-
ten commence in the aftermath of a contested representation proceed-
ing. When the parties appear at the negotiating table during the certi-
fication year, they must attempt to put their differences behind them
and forge a new bargaining relationship. The difficulty or their under-
taking is complicated by the fact that they are negotiating for the first
time without any prior contract or experience to guide them. There-
fore the need is great for an insular period in which the bargaining re-
lationship can stabilize and succeed free from distraction.
331 NLRB at 1650 (citations omitted).
19 I note that in Board cases since Chelsea Industries, the Board has
found it unnecessary to pass on this understanding of the rule of Chel-
sea Industries. See Virginia Mason Medical Center, 350 NLRB 923,
923 fn. 5 (2007); Badlands Golf Course, 350 NLRB 264, 266 fn. 9
(2007); Goya Foods of Florida, 347 NLRB 1118, 1122 fn. 13 (2006),
enfd. 525 F.3d 1117 (11th Cir. 2008); In re: Saginaw Control, 339
NLRB 541, 545 fn. 7 (2003) (Board majority does not reach the issue,
but one Board Member agrees that withdrawal of recognition was un-
lawful under Chelsea Industries because “employee petition was signed
during the Union’s initial certification year”); see LTD Ceramics, Inc.,
LATINO EXPRESS, INC. 925
In any event, as referenced above, it is clear that in this case
the Respondent knew of the decertification petition within the
certification year. Thus, the second policy rationale girding the
Chelsea Industries holding—barring an employer from relying
upon a decertification petition garnered during the certification
bar in order to “deter an employer from violating its duty to
bargain”—is also operative here. The Respondent’s knowledge
of the petition means that the Respondent knew—to the detri-
ment of the bargaining process—“that, if he dillydallies or sub-
tly undermines, union strength may erode and thereby relieve
him of his statutory duties.’” Chelsea Industries, 331 NLRB at
1648, quoting Brooks, 348 U.S. at 100. Indeed, that appears to
be precisely the gambit engaged in by the Respondent in this
case. Thus, even assuming, arguendo, that the rule of Chelsea
Industries applies only if the employer has knowledge of the
decertification campaign, that requirement is fully met in this
case.
Accordingly, I conclude that the Respondent was not privi-
leged to rely upon the petition garnered during the certification
year to withdraw recognition after the lapse of the certification
year. The Respondent violated Section 8(a)(1) and (5) of the
Act by withdrawing recognition from the Union on April 24,
2012.
B. The Respondent Failed to Satisfy its Burden to Prove
that the Petition Evidenced Loss of Support
Sufficient to Support a Withdrawal of Recognition
The General Counsel also contends that the withdrawal of
recognition was unlawful because the Respondent failed to
prove that the petition demonstrated a lack of majority support
for the Union. I find merit in the General Counsel’s claim.
While Levitz permits an employer to rely on a petition to
withdraw recognition, the employer does so, “at its peril.” 333
NLRB at 725. The peril is precisely identified: “If the union
contests the withdrawal of recognition in an unfair labor prac-
tice proceeding, the employer will have to prove by a prepon-
derance of the evidence that the union had, in fact, lost majority
support at the time the employer withdrew recognition. If it
fails to do so, it will not have rebutted the presumption of ma-
jority status, and the withdrawal of recognition will violate
Section 8(a)(5).” Id.
Thus, where an employer seeks to justify its withdrawal of
recognition based on the union’s loss of majority support, it is
the employer’s burden to prove the loss of majority support.
The Board has squarely held that where an employer relies
on an employee petition for evidence of the a union’s loss of
majority support, it is the Respondent’s obligation to authenti-
cate the petition signatures on which it relies. Ambassador
Services, 358 NLRB 1172, 1172 fns. 1 and 3 (2012). (As Judge
Carson pointed out in Ambassador Services, Inc., in reasoning
adopted by the Board, it is the same standard of proof required

341 NLRB 86 (2004) (Board majority adopts judge’s finding that peti-
tion signed by a significant number of employees “during the last hours
of the last day of the certification year” is “de minimus” example of
“prematurity . . . so slight as to be insignificant” and permitted petition
as evidence of loss of majority support supporting withdrawal of recog-
nition 6 days after end of certification year), enfd. 185 Fed. Appx. 581
(2006).
of a union (or the General Counsel) when seeking a bargaining
order based on authorization cards.)
Here, no effort to authenticate the petition’s signatures was
undertaken by the Respondent at trial or, as far as the record
reveals, otherwise. The three employees involved in the solici-
tation of the petition signatures testified, however, their testi-
mony does not authenticate anything close to a majority of the
signatures. Lopez testified generally as to the process he used
to solicit signatures but his testimony offers nothing in the way
of evidence that would prove the authenticity of any of the
signatures on the petition. Penro stated that he recognized
“most of the ones that signed,” and testified that “I know when
I had the paper and they were signing it, I know . . . they
worked there.” However, he also testified that he only obtained
and witnessed the signing by employees of one page of the
multipage petition (p. 4), which contains 17 signatures in addi-
tion to Penro’s. To the extent his testimony may be read to
state that he was also “in and out” when certain other employ-
ees signed, it is vague and indeterminable which or how many
other employees he saw sign the petition. Patitucci testified
that the names on the petitions were all employees of Latino
Express, but that does nothing to authenticate the signatures.
She testified that she saw people sign the petition, but there is
no suggestion how many she observed, and according to Pen-
ro’s testimony of the role she played, she would not have ob-
served any of the ones that he signed. Patitucci testified that
she obtained three of the signatures.
Thus, at most, 20 signatures, plus the signatures of the em-
ployees who solicited signatures, or 23 signatures, were authen-
ticated during the trial. As the General Counsel points out,
there is no record evidence definitively establishing the number
of unit employees at the time of the withdrawal of recognition,
but the evidence points to a number of 84, the number of em-
ployees on a list of employees submitted by the Employer to
the Region during the investigation of this case. In a May 10,
2012 letter to the Region, the Respondent maintained that this
list was accurate as of February 12, 2012 (although, oddly, the
list indicates it was generated in June 2012, which postdates the
May 10, 2012 letter from the Respondent’s counsel enclosing
the list). In any event, with only 23 signatures authenticated,
the rule of Ambassador Services, prohibits a ruling in favor of
the Respondent unless the evidence shows there were 46 or less
unit employees, and nothing at all suggests the number is that
low. Accordingly, the Respondent’s failure to authenticate the
petition signatures amounts to a failure to demonstrate that the
Union lacked majority support, and the Respondent’s with-
drawal of recognition is unlawful on this basis.20

20 I note that, particularly under the circumstances, the Respondent’s
failure to authenticate the signatures should not be considered an over-
sight or technicality that can be ignored. The only evidence of authen-
tication at all comes from the three employees who solicited the signa-
tures. Their testimony about the process they undertook to obtain sig-
natures has been demonstrated to be, at least, not the whole truth, as
indicated by the credited testimony (discussed above) of witnesses who
saw employees approached on company property by Lopez and Penro
and asked to sign the petition. Given this, to simply assume the authen-
ticity of the signatures would be particularly unwarranted. Authentica-
tion is the Respondent’s burden. And it failed to carry (or even attempt
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD926
CONCLUSIONS OF LAW
1. The Respondent Latino Express Inc. is an employer with-
in the meaning of Section 2(2), (6), and (7) of the Act.
2. The Charging Party Teamsters Local 777 (the Union) is
the certified collective-bargaining representative of the follow-
ing appropriate unit of the Respondent’s employees:
All full-time and regular part-time drivers employed by the
Employer at its facility presently located at 3230 West 38th
Street, Chicago, Illinois; excluding mechanics, dispatchers,
trainers, charter directors, payroll people, payroll assistants,
public relations people, maintenance directors, office person-
nel, professional employees, managerial employees, guards,
and supervisors as defined in the Act.
3. The Respondent has violated Section 8(a)(1) and (5) of
the Act, since on or about April 2, 2012, by bargaining in bad
faith without intent to reach an agreement.
4. The Respondent violated Section 8(a)(1) and (5) of the
Act on or about April 6, 2012, by unilaterally implementing the
Driver’s Accountable Act workplace policy without affording
the Union an opportunity to bargain with respect to these mat-
ters and without first bargaining to a valid bargaining impasse.
5. The Respondent violated Section 8(a)(1) and (5) of the
Act, on or about April 24, 2012, by withdrawing recognition
from the Union as the collective-bargaining representative of
the above-referenced unit of the Respondent’s employees.
6. The unfair labor practices committed by Respondent af-
fect commerce within the meaning of Section 2(6) and (7) of
the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist therefrom and to take certain affirmative action designed
to effectuate the policies of the Act.
Having found that Respondent violated Section 8(a)(1) and
(5) of the Act by unilaterally implementing the Driver’s Ac-
countable Act, the Respondent shall be ordered, upon the Un-
ion’s request, to rescind those changes encompassed within the
implementation of the Driver’s Accountable Act and restore the
status quo ante. The Respondent will be required to make
whole any bargaining unit employees for losses suffered as a
result of the Respondent’s unlawful implementation of the
Driver’s Accountable Act. The make-whole remedy shall be
computed in accordance with Ogle Protective Services, 183
NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with
interest at the rate prescribed in New Horizons, 283 NLRB
1173 (1987), compounded daily as prescribed in Kentucky Riv-
er Medical Center, 356 NLRB 6 (2010). In accordance with
Latino Express, Inc., 359 NLRB 518 (2012), the Respondent
shall compensate affected employees for the adverse tax conse-
quences, if any, of receiving lump sum backpay awards, and
file a report with the Social Security Administration allocating

to carry) that burden in circumstances where significant contradictions
dog the testimony of the petition solicitors regarding the solicitation
process.
the backpay awards to the appropriate calendar quarters for
each employee.
I have found that the Respondent violated Section 8(a)(1)
and (5) of the Act by failing and refusing to collectively bargain
with the Union as the collective-bargaining representative of an
appropriate bargaining unit of employees and by withdrawing
recognition from the Union as the employees’ collective-
bargaining representative. Accordingly, the Respondent shall
recognize the Union and, upon request, bargain for a reasonable
period of time (as set forth in Lee Lumber & Building Material
Corp., 334 NLRB 399 (2001), enfd. 310 F.3d 209 (D.C. Cir.
2002)), with the Union as the bargaining representative of the
unit employees with respect to wages, hours, and other terms
and conditions of employment and, if an understanding is
reached, embody the understanding in a signed document.
The Board consistently has held that that an affirmative bar-
gaining order is “the traditional, appropriate remedy for an
8(a)(5) refusal to bargain with the lawful collective-bargaining
representative of an appropriate unit of employees.” Caterair
Intl., 322 NLRB 64, 68 (1996). For the reasons set forth in
Caterair, supra, an affirmative bargaining order is warranted as
a remedy here.
However, while the Board applies Caterair, the Board also
recognizes that the Court of Appeals for the D.C. Circuit has
required the Board to justify, on the facts of each case, the im-
position of an affirmative bargaining order. See, e.g., Vincent
Industrial Plastics Inc. v. NLRB, 209 NLRB F.3d 727 (D.C.
Cir. 2000); Lee Lumber & Building Material Corp. v. NLRB,
117 F.3d 1454, 1462 (D.C. Cir. 1997); Excel/Atmos, Inc. v.
NLRB, 28 F.3d 1243, 1248 (D.C. Cir. 1994). In view of this,
the Board analyzes the facts in accordance with the D.C. Cir-
cuit precedent, which was summarized in Vincent, supra at 738,
as follows: an affirmative bargaining order “must be justified
by a reasoned analysis that includes an explicit balancing of
three considerations: ‘(1) the employees’ Section 7 rights; (2)
whether other purposes of the Act override the rights of em-
ployees to choose their bargaining representatives; and (3)
whether alternative remedies are adequate to remedy the viola-
tions of the Act.’”
Adhering to the Board’s approach, and analyzing the facts of
this case under the three-factor balancing test outlined by the
D.C. Circuit, I find that the facts warrant an affirmative bar-
gaining order here.
An affirmative bargaining order in this case vindicates the
Section 7 rights of the unit employees who were denied the
benefits of collective bargaining for the full one year certifica-
tion period by the Respondent’s refusal to bargain collectively
with the Union. While I have found that the Respondent’s bad-
faith bargaining did not begin until approximately 10-½ months
after certification, the timing was purposeful on the Respond-
ent’s part and doomed the bargaining to failure. The employees
originally chose union representation but did not receive what
Section 7 promises them.
At the same time, an affirmative bargaining order, with its
attendant bar to raising a question concerning the Union’s con-
tinuing majority status for a reasonable time, does not unduly
prejudice the Section 7 rights of employees who may oppose
continued representation. The duration of the order is no longer
LATINO EXPRESS, INC. 927
than is reasonably necessary to remedy the ill effects of the
violation. It is only by restoring the status quo ante and requir-
ing the Respondent Employer to bargain with the Union for a
reasonable period of time that the employees will be able to
fairly assess the Union’s effectiveness as a bargaining repre-
sentative in an atmosphere free of the Respondent’s unlawful
conduct. The employees can then determine whether continued
representation by the Union is in their best interest.
An affirmative bargaining order also serves the policies of
the Act by fostering meaningful collective bargaining and in-
dustrial peace. It removes the Respondent’s incentive to delay
bargaining in the hope of discouraging support for the Union.
That is particularly important here, where, as discussed above,
the Respondent, instead of bargaining lawfully as required,
engaged in regressive and unlawful bargaining at a time it be-
lieved it only needed to wait out the certification period. With-
out an affirmative bargaining order, the Respondent’s unlawful
bargaining conduct will be rewarded. An affirmative bargain-
ing order also ensures that the Union will not be pressured by
the Respondent’s unlawful conduct to achieve immediate re-
sults at the bargaining table following the Board’s resolution of
its unfair labor practice charges and the issuance of a cease-
and-desist order.
A cease-and-desist order, without a temporary decertification
bar, would be inadequate to remedy the Respondent’s viola-
tions, because it would allow a challenge to the Union’s majori-
ty status before the taint of the Respondent’s unlawful conduct
has dissipated. Such a result would be particularly unfair in
circumstances such as those here, where the nature of the Re-
spondent’s unfair labor practices were designed to preclude
effective bargaining representation and, through unlawful con-
duct, rendered it difficult if not impossible for the Union to win
back employee support that it had lost during the certification
year. I find that these circumstances outweigh the temporary
impact the affirmative bargaining order will have on the rights
of any employees who oppose the Union’s continued represen-
tation.21

21 The General Counsel requests that the certification year be ex-
tended in accordance with the Board’s decision in Mar-Jac Poultry Co.,
136 NLRB 785 (1962). “The Board has long held that where there is a
finding that an employer, after a union’s certification, has failed or
refused to bargain in good faith with that union, the Board’s remedy
therefore ensures that the union has at least 1 year of good-faith bar-
gaining during which its majority status cannot be questioned.” This
“is a standard remedy where an employer’s unlawful conduct precludes
appropriate bargaining with the union.” Outboard Marine Corp., 307
NLRB 1333, 1348 (1992); Accurate Auditors, 295 NLRB 1163 (1989).
The Board’s remedy usually takes the form of an extension of certifica-
tion for one year, although it may be for a shorter period of time, or
even for a “reasonable time.” Alan Ritchey, Inc., 354 NLRB 628, 677–
678 (2009); G.J. Aigner Co., 257 NLRB 669 fn. 4 (1981); San Antonio
Portland Cement Co., 277 NLRB 309 (1985).
In this case, the Board’s standard remedial response to a finding of
bad-faith bargaining, an order to bargain for a reasonable time, as ex-
plained and justified in the text, provides an adequate remedy equal to
that which I would grant pursuant to Mar-Jac Poultry, supra. Indeed,
were I to grant an extension of the certification year pursuant to Mar-
Jac Poultry—in effect an order to bargain for an additional period
during which the union’s presumption of majority support is insulated
With regard to the cease-and-desist portion of the remedy,
the General Counsel contends that a broad cease-and-desist
order requiring the Respondent to cease and desist from abridg-
ing the rights of employees under the Act “in any other man-
ner” is appropriate for this case. This is a broader remedy than
the traditional order that the Respondent refrain from abridging
employee rights “in any like or related manner.”
A broad order is appropriate where “a respondent is shown
to have a proclivity to violate the Act or has engaged in such
egregious or widespread misconduct as to demonstrate a gen-
eral disregard for the employees’ fundamental statutory rights.”
Hickmott Foods, 242 NLRB 1357, 1357 (1979). In this in-
stance, this bargaining unit’s union representation campaign in
late 2010 and 2011 resulted in findings of multiple violations of
the Act against this Respondent. See Latino Express, Inc., 358
NLRB 823 (2012). In that decision the Board considered but
rejected the General Counsel’s request for imposition of a
broad cease-and-desist order, finding that despite the multiple
violations during the campaign, a proclivity to violate the Act
had not been shown by the violations, all centered around the
employer’s response to the organizing campaign. However,
with the organizing campaign over, the Respondent has been
found to have bargained in bad faith, and unlawfully withdrawn
recognition from the union in the next phase of the union-
employer relationship. At this point, a proclivity to violate the
Act is undeniable, as the Respondent has continued to deny the

from challenge—I would order an extension of the certification year for
a reasonable period of time—effectively the same remedy I am order-
ing here. In considering the length of any extension of the certification
period, the Board has explained that
it is necessary to take into account the realities of collective-
bargaining negotiations by providing a reasonable period of time in
which the Union and the Respondent can resume negotiations and
bargain for a collective-bargaining agreement without unduly saddling
the employees with a bargaining representative that they may no long-
er wish to have represent them. Various factors are considered in
making such an evaluation, including the nature of the violations
found, the number, extent, and dates of the collective-bargaining ses-
sions held, the impact of the unfair labor practices on the bargaining
process, and the conduct of the Union during negotiations.
Wells Fargo Armored Services Corp., 322 NLRB 616, 617 (1996)
(footnotes and internal quotations omitted).
In this case, ordering an extension of the certification year for a few
weeks (i.e., the period of time during the certification year in which the
bad faith bargaining occurred) would be to “ignore the realities of bar-
gaining” and fail to “provid[e] a reasonable period of time in which the
Union and the Respondent can resume negotiations” and hope to move
beyond the bad-faith bargaining. Here, the Respondent’s final offer
and conduct thereafter withdrawing recognition destroyed what little
progress the parties had made in earlier bargaining and ensured the
failure of the collective-bargaining process. Given this, whether pro-
ceeding under Jar-Mac, supra, or simply ordering an affirmative bar-
gaining order, I find that an order of a reasonable period of bargain-
ing—defined by Lee Lumber, 334 NLRB 399, to be at least 6 months,
with the burden on the General Counsel to prove that a reasonable
period has not elapsed after 6 months (334 NLRB at 402) is the most
appropriate remedy. It will allow the parties to bargain without the
shadow of the Respondent’s unfair labor practices and enable the Union
time to demonstrate to employees what benefits may come from good-
faith bargaining.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD928
full measure of rights under the Act to the employees, who
chose union representation and opted for collective bargaining.
Moreover, the Respondent’s bad-faith bargaining, beginning
April 2, 2012, was brazen, and, I have found, calculated to play
a role in eliminating union representation. At this point further
violations may be anticipated and an intensification of remedial
options should be utilized in an effort to obtain compliance
with the Act. I find that a broad cease-and-desist order is ap-
propriate.
The Respondent shall post an appropriate informational no-
tice, as described in the attached appendix. This notice shall be
posted in all Respondent’s facilities or wherever the notices to
employees are regularly posted for 60 days without anything
covering it up or defacing its contents. In addition to physical
posting of paper notices, notices shall be distributed electroni-
cally, such as by email, posting on an intranet or an internet
site, and/or other electronic means, if the Respondent customar-
ily communicates with its employees by such means. In the
event that, during the pendency of these proceedings the Re-
spondent has gone out of business or closed a facility involved
in these proceedings, the Respondent shall duplicate and mail,
at its own expense, a copy of the notice to all current employees
and former employees employed by the Respondent at any time
since April 2, 2012. When the notice is issued to the Respond-
ent, it shall sign it or otherwise notify Region 13 of the Board
what action it will take with respect to this decision.
The General Counsel also seeks an order requiring that the
attached notice be read to employees during working time both
in English and Spanish. In the previous case involving this
Respondent, the Board declined to order the reading of the
notice, noting that “despite the Respondent’s misconduct, the
Union won the election and has been certified as the employ-
er’s representative.” Latino Express, 358 NLRB 823, 824
However, the new violations in the instant matter were de-
signed to aid in the elimination of union representation. Just as
a broad cease-and-desist order is warranted by the persistence
of the Respondent’s violations, the new violations warrant fur-
ther measures to assure employees that their rights will be re-
spected in the future. “Reading the notice to the employees in
the presence of a responsible management official serves as a
minimal acknowledgement of the obligations that have been
imposed by law and provides employees with some assurance
that their rights under the Act will be respected in the future.”
Whitesell Corp., 357 NLRB 1119, 1124 (2011). A reading to
the employees assembled for that purpose only, on company
time, will enable the employees to fully perceive that the Re-
spondent and its managers are bound by the requirements of the
Act. Federated Logistics, 340 NLRB 255, 258 (2003), enfd.
156 Fed. Appx. 386 (2d Cir. 2005). Accordingly, the notice
must be read to employees assembled for that purpose, on
working time, in both English and Spanish, by a responsible
official of the Respondent or, at the Respondent’s option, by a
Board agent in the presence of responsible Respondent offi-
cials. The Board and union representatives will be provided the
opportunity to be present to monitor the reading of the notice.
Texas Super Foods, 303 NLRB 209, 220 (1991).
[Recommended Order omitted from publication.]