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

National Labor Relations Board - Board Decisions

Dec 18, 2019

368 N.L.R.B. 136 (N.L.R.B. 2019)

368 NLRB No. 136
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Twin America, LLC, City Sights NY, LLC, and Gray
Line New York Tours, Inc., as a single employer,
and JAD Transportation, Inc., as joint employers
and Tefe Kwami Amewo
United Service Workers Union, IUJAT, Local 1212
and Tefe Kwami Amewo
United Service Workers Union, IUJAT, Local 1212
and Arthur Z. Schwartz. Cases 02–CA–190704,
02–CA–196228, 02–CA–198436, 02–CB–190736,
and 02–CB–199847
December 18, 2019
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN
AND EMANUEL
On March 20, 2019, Administrative Law Judge Jeffrey
P. Gardner issued the attached decision. The General
Counsel filed exceptions and a supporting brief, the Re-
spondent Joint Employers and the Respondent Union each
filed an answering brief, and the General Counsel filed a
reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.

1 There are no exceptions to the judge’s finding that the Respondent
Joint Employers modified the collective-bargaining agreement with the
Respondent Union, in violation of Sec. 8(a)(5) within the meaning of
Sec. 8(d), by requiring employees to agree, as a condition of employ-
ment, to a dispute resolution procedure that differed from the procedure
contained in the collective-bargaining agreement.
2 The General Counsel has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stand-
ard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d
Cir. 1951). We have carefully examined the record and find no basis for
reversing the findings.
The General Counsel argues that the judge improperly found certain
testimony concerning the Respondent Joint Employers’ statements to
employees regarding the endtailing of their seniority to have been taken
out of context and therefore to be “less credible.” The General Counsel’s
argument is unavailing because, even if fully credited, this testimony
would be insufficient to establish that the endtailing, discussed below,
was unlawfully related to employees’ union membership or support.
We adopt the judge’s dismissal of the allegation that the Respondent
Joint Employers violated Sec. 8(a)(3) and (1), and the Respondent Union
violated Sec. 8(b)(1)(A) and (2), by endtailing the former Gray Line em-
ployees, formerly represented by Local 225, Transport Workers Union
of America, AFL–CIO, behind the existing JAD employees for layoff
and job-location-bidding purposes. Endtailing does not violate the Act
when it is based on unit seniority instead of union seniority. See, e.g.,
Interstate Bakeries Corp., 357 NLRB 15, 17 (2011), enfd. sub nom.
The Board has considered the decision and the record in
light of the exceptions1 and briefs and has decided to af-
firm the judge’s rulings, findings,2 and conclusions and to
adopt the recommended Order as modified and set forth in
full below.3
ORDER
The National Labor Relations Board orders that the Re-
spondents, Twin America, LLC, City Sights NY, LLC,
and Gray Line New York Tours, Inc., as a single em-
ployer, and JAD Transportation, as joint employers, New
York, New York, their officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Failing to continue in effect all the terms and con-
ditions of their collective-bargaining agreement with
United Service Workers Union, IUJAT, Local 1212 (the
Union) without the Union’s consent by requiring employ-
ees to agree to individual arbitration as a condition of em-
ployment.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) To the extent it has not already done so, rescind the
requirement that employees agree to individual arbitration
as a condition of employment.
NLRB v. Teamsters Local 523, 488 Fed.Appx. 280 (10th Cir. 2012), cert.
denied 568 U.S. 1193 (2013). Here, the record shows that the Respond-
ents sought to resolve a unit-seniority issue—arising after an election that
resulted in the certification of the Respondent Union as the representative
of a newly combined unit of employees—based on permissible unit-re-
lated concerns rather than on union membership considerations. Further,
as noted by the judge, the General Counsel has not shown that the end-
tailing was otherwise coercive along Sec. 7 lines. See, e.g., Teamsters
Local 896 (Anheuser-Busch), 296 NLRB 1025, 1028–1029 (1989) (even
where seniority preference arguably appeared to facially discriminate
along union lines, no basis to infer discriminatory motive because facts
showed it was based on considerations carrying over from a defunct mul-
tiemployer unit).
Having found that the endtailing of the former Gray Line employees
was not unlawful, we also adopt the judge’s finding that the Respondent
Joint Employers did not violate Sec. 8(a)(3) and (1) by constructively
discharging employees who declined to accept the endtailing as a condi-
tion of continued employment. We further find no merit to the General
Counsel’s argument on exception that the Joint Employers unlawfully
required employees formerly represented by Local 225 to sign a form
indicating that they would be probationary for 90 days following their
transition to the JAD payroll. Because the General Counsel did not raise
this allegation in the complaint or before the judge, it is deemed waived.
See, e.g., Laborers’ Local 91 (Scrufari Construction Co.), 368 NLRB
No. 40, slip op. at 1 fn. 2 (2019).
3 We shall modify the judge’s recommended Order and substitute a
new notice to conform to the judge’s findings and to the Board’s standard
remedial language.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(b) Notify all current and former employees who were
required to agree to individual arbitration as a condition of
employment that the requirement has been rescinded.
(c) Within 14 days after service by the Region, post at
each of its New York, New York facilities copies of the
attached notice marked “Appendix.”4 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 2, after being signed by the Respondents’ authorized
representative, shall be posted by the Respondents and
maintained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily 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 Respondents customarily
communicate with their employees by such means. Rea-
sonable steps shall be taken by the Respondents to ensure
that the notices are not altered, defaced, or covered by any
other material. If any of the Respondents has gone out of
business or closed a facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own ex-
pense, a copy of the notice to all current employees and
former employees employed by the Respondent at any
time since January 5, 2017.
(d) Within 21 days after service by the Region, file with
the Regional Director for Region 2 a sworn certification
of a responsible official on a form provided by the Region
attesting to the steps that the Respondents have taken to
comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
Dated, Washington, D.C. December 18, 2019
John F. Ring, Chairman
Marvin E. Kaplan, Member
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD

4 If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading “Posted by Order of the National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of
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 ac-
tivities.
WE WILL NOT fail to continue in effect all the terms and
conditions of our collective-bargaining agreement with
United Service Workers Union, IUJAT, Local 1212 (the
Union) without the Union’s consent by requiring our em-
ployees to agree to individual arbitration as a condition of
employment.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, to the extent we have not already done so, re-
scind the requirement that our employees agree to individ-
ual arbitration as a condition of employment.
WE WILL notify all current and former employees who
were required to agree to individual arbitration as a condi-
tion of employment that the requirement has been re-
scinded.
TWIN AMERICA, LLC, CITY SIGHTS NY, LLC,
GRAY LINE NEW YORK TOURS, INC., AND JAD
TRANSPORTATION, INC.
The Board’s decision can be found at
https://www.nlrb.gov/case/02-CA-190704 or by using the
QR code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Rela-
tions Board, 1015 Half Street, S.E., Washington, D.C. 20570,
or by calling (202) 273-1940.
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board.”
TWIN AMERICA, LLC, 3
Jamie Rucker, Esq., for the General Counsel.
Stanley Goodman, Esq. and Carlos Torrejon, Esq., for the Re-
spondent Employers.
Gary Rothman, Esq. and Eric LaRuffa, Esq., for the Respondent
Union.
Arthur Z. Schwartz, for the Charging Parties.
DECISION
STATEMENT OF THE CASE
JEFFREY P. GARDNER, Administrative Law Judge. The multi-
ple charges in this case were filed by Tefe Kwami Amewo, an
individual, and Arthur Z. Schwartz, an individual, between Jan-
uary 3 and September 13, 2017.1 An amended consolidated
complaint was issued on April 20, 2018 against the Respondent
Employers, Twin America, LLC, City Sights NY LLC and Gray
Line New York Tours, Inc. as a single employer, and JAD Trans-
portation, as joint employers; and against the Respondent Union,
United Service Workers Union, IUJAT, Local 1212.2
The complaint alleges Respondent Employers violated Sec-
tion 8(a)(3) and (1) by terminating the former Gray Line ticket
agents; by end-tailing the seniority dates of those Gray Line
ticket agents; and by requiring those former Gray Line ticket
agents to accept their end-tailed seniority dates as a condition of
rehire. The complaint further alleges Respondent Employer JAD
Transportation, Inc. violated Sections 8(a)(5) and (1) and 8(d) of
the Act by unilaterally requiring the former Gray Line ticket
agents to agree to an “alternative dispute resolution” procedure
as a condition of rehire. (GC Exh. 1(v).)3
In addition, the complaint alleges Respondent United Service
Workers Union violated Sections 8(b)(1)(A) and (2) of the Act
by agreeing to end-tail the seniority dates of the former Gray
Line ticket agents.
On June 18 and 19, 2018, I conducted a trial at the Board’s
Regional Office in New York, New York, at which all parties
were afforded the opportunity to present their evidence. After
the trial, the General Counsel, Respondent Employers and Re-
spondent Union filed timely briefs, which I have read and con-
sidered.4

1 Arthur Z. Schwartz is an attorney who has represented Local 225,
Transport Workers Union of America, AFL–CIO (hereinafter “Local
225”), which is not a party to these proceedings. It appears that he did
not intend to be an individual charging party, but rather, intended to file
on behalf of the affected employees. Nevertheless, the General Counsel
chose not to amend the case caption.
2 In the interest of clarity, the various Respondents will be referred to
in this decision at times individually, or as Respondent Employers, the
Respondent Union, “the Employer(s)” or “the Union” where appropriate.
Upon consideration of the briefs, and the entire record, includ-
ing the testimony of witnesses and my observation of their de-
meanor, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent Employers Twin America, LLC, City Sights NY,
LLC and Gray Line New York Tours, Inc. admit, and I find, that
they are, respectively, a Delaware limited liability corporation
(Twin America), a New York limited liability corporation (City
Sights), and a New York corporation (Gray Line), all with a prin-
cipal place of business at 1430 Broadway, New York, New York.
These Respondents also admit, and I find, that they are a single-
integrated business enterprise engaged in the business of operat-
ing sightseeing tour buses with a “Visitor’s Center” open to the
public located at 777 Eighth Ave., New York, New York, out of
which its tour guides and ticket agents work, and are a single
employer within the meaning of the Act.
Respondents Twin America, City Sights and Gray Line fur-
ther admit, and I find, that in conducting their business opera-
tions during the most recent 12-month period, they collectively
derived gross revenue in excess of $500,000 from ticket sales
directly to the general public, and purchased and received at its
New York facilities, goods valued in excess of $5000 directly
from suppliers located outside the state of New York.
Respondent Employer JAD Transportation, Inc. admits, and
I find, that it is a New York corporation with an office and prin-
cipal place of business at 105 Cedar Drive West, Plainview, New
York, and has been engaged in the business of providing em-
ployees to other companies, including Twin America and City
Sights. Respondent JAD further admits, and I find, that in con-
ducting its business operations during the same period, it derived
gross revenue from its business operations in excess of $50,000
from other companies which are themselves directly engaged in
interstate commerce. It further admits that it is a joint employer
of the unit of tour guides and ticket agents at issue.
Therefore, I find that Respondent Employers are employers
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act, that Respondents Twin America, City Sights
and Gray Line are a single employer within the meaning of the
Act, and that they are joint employers with JAD of the employees
involved herein.
Respondent Employers admit, and I further find, that James
Murphy and Paul Seeger have been supervisors and agents of
Twin America and that Janet West has been a supervisor and
agent of JAD within the meaning of Section 2(11) and (13) of
the Act.
Finally, it is undisputed and I also find that the Respondent
Union, United Service Workers Union, IUJAT, Local 1212
3 Abbreviations used in this decision are as follows: “Tr.” for the
transcript, “GC Exh.” for the General Counsel's exhibits, “ER. Exh.” for
Respondent Employers’ Exhibits, “U. Exh.” for Respondent Union's ex-
hibits, and “Jt. Exh.” for Joint exhibits. Specific citations to the transcript
and exhibits are included only where appropriate to aid review, and are
not necessarily exclusive or exhaustive.
4 Neither of the individual charging parties filed a brief.
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(Local 1212 or the Union) is a labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Background
Respondent Employers are in the sightseeing tour bus indus-
try, and each has a slightly different history leading them to the
current status quo. City Sights began operating hop-on/hop-off
sightseeing tour bus service in New York City in about 2005, and
since May 2005, City Sights has recognized the Union as the col-
lective-bargaining representative of its employees.5 This recog-
nition was embodied in a series of collective-bargaining agree-
ments (CBAs) between Local 1212 and JAD dating back to
2005.
Since at least 1994, Gray Line also operated a hop-on/hop-off
sightseeing tour bus service in New York City, and from at least
November 2008 until November 28, 2016, Gray Line recognized
a different union, Transport Workers Union, Local 225 (herein-
after Local 225), as the collective-bargaining representative of
its tour guides and ticket agents. That recognition was embodied
in a series of CBAs dating from November 15, 2008 through Jan-
uary 5, 2015.
In March 2009, pursuant to a joint venture agreement, City
Sights and Gray Line began operating together under the name
“Twin America.” However, at that time, and for nearly a decade
after, the employees working for Twin America remained sepa-
rated into two bargaining units, represented by two separate un-
ions: the former City Sights employees represented by Local
1212, and the former Gray Line employees represented by Local
225, each subject to those unions’ respective CBAs.
In April 2010, Local 225 filed a unit clarification petition
seeking to add the City Sights employees represented by Local
1212 to its Gray Line bargaining unit, although that petition was
subsequently withdrawn. Thereafter, later in 2010, Local 225
filed an RC petition seeking to represent all the tour guides and
ticket agents working at Twin America. That petition was op-
posed by both Local 1212 and Twin America on the grounds that
it was barred by the existence of the respective CBAs in place at
City Sights and Gray Line. Although Local 225 maintained that
a contract bar should not apply because, it argued, City Sights
and Gray Line had merged into one entity, the Regional Director
found in favor of the Union and Twin America and dismissed the
petition.
Local 1212 and Local 225 continued representing their re-
spective bargaining units over the next few years while Twin
America was engaged in litigation with federal, state and city
authorities relating to the combination of these various entities.
Over that same period of time, Twin America also began further
integrating the City Sights and Gray Line operations, though it

5 Specifically, its full-time and regular part-time drivers, ticket
agents, and tour guides in New York City, who are supplied to City
Sights by JAD.
6 Local 225’s CBA expired after an initial extension in January 2015,
and although there was bargaining between Twin America and Local 225
for a successor CBA, no such agreement was ever reached. Local 1212’s
most recent prior CBA had been in effect through May 2017. It is not
disputed that Twin America continued applying the terms of those
declined to actually merge the two work forces. Indeed, even
upon resolution of the litigation in March 2015, there continued
to be two separate bargaining units represented by their respec-
tive unions and with two distinct working conditions deriving
from what had been separate CBAs.6
During that entire background, there does not appear to have
been any allegation that the Employer favored one union or the
other, or that it had animus toward Local 225 in particular. And
there was no evidence presented at the hearing demonstrating an
overt preference on the part of the Employer for one union over
the other. Indeed, Respondent Employer openly maintained its
desire that both unions remain in place representing their respec-
tive units at that time, and readily acknowledged as much at the
hearing.
On May 12, 2015, Local 225 again filed a unit clarification
petition seeking to add the Union-represented tour guides and
ticket agents to the Local 225 bargaining unit, which was again
opposed by Twin America, and again Local 225 withdrew that
petition. Finally, on August 31, 2015, Local 225 filed a new RC
petition seeking to represent all of the tour guides, ticket agents
and customer service agents working for the integrated opera-
tions of Twin America, Gray Line and JAD.
By this point, the Gray Line and City Sights operations had
been fully merged, although the employees still remained em-
ployed by separate entities.7 In light of the status of the employ-
ers’ merged operations, in September 2015, the parties and the
Region agreed to an election among the tour guides, ticket agents
and customer service agents working for the integrated opera-
tions of Twin America, Gray Line and JAD, with the choices
being representation by Local 225, by Local 1212 or no union.
That initial election took place on September 18, 2015, with
no party obtaining a majority, and the two unions each receiving
more votes than there were votes against union representation.
As such, after lengthy post-election proceedings spanning over a
year, on November 18, 2016, a runoff election was held to deter-
mine which of the two unions would represent the unit.
As a result of that runoff election, on November 28, 2016, the
Board finally certified the Union (Local 1212) as the collective-
bargaining representative for all of the tour guides, ticket agents
and customer service agents working for the integrated opera-
tions of Twin America, Gray Lines and JAD in a new combined
bargaining unit. Shortly after the Union’s certification, the par-
ties began negotiations for an initial CBA for the newly com-
bined unit.
In the meantime, with the new obligation to negotiate with the
Union for a new contract covering all of the bargaining unit em-
ployees, Twin America determined that it would outsource all of
the Gray Lines labor to JAD and eliminate the Gray Lines payroll
to have one common employer and payroll for the entire unit.8
respective CBAs until the current agreement covering all of the employ-
ees went into effect in May 2017.
7 The former City Sights employees were employed and paid by JAD
while the Gray Lines employees remained employed and paid by Gray
Lines.
8 Although it is disputed whether the manner in which the Employers
accomplished the transition of Gray Lines employees to the JAD payroll
was lawful or required, it has not been argued that the Employers were
not entitled to outsource the former Gray Line employees to JAD.
TWIN AMERICA, LLC, 5
Despite that impending transition to the JAD payroll, and pend-
ing negotiations with the Union for a new CBA covering all em-
ployees, Twin America was still applying to the employees who
were then on the Gray Lines and JAD payrolls, respectively, the
terms and conditions of their previous unions’ two separate
CBAs.
The Parties’ Negotiations
The Union and Twin America held collective-bargaining ses-
sions for a new contract beginning in December 2016, as well as
communicating in writing over some proposals. The Union was
represented in negotiations by United Service Workers Union
National vice president, Jonathan Ames, who testified at the
hearing for the General Counsel. The Employers were repre-
sented in negotiations by Twin America’s Executive Vice Presi-
dent Paul Seeger and Vice President James Murphy, and at times
JAD President Janet West, all three of whom also testified at the
hearing for the Respondent Employers.
The parties’ first negotiation took place in person in mid-De-
cember 2016 at one of the Union’s offices with Ames, Seeger,
and Murphy present. The meeting did not include employee bar-
gaining committee members and did not address ticket agent sen-
iority. Rather, the focus was regarding a different group of em-
ployees.
Prior to the next in-person meeting, by letter dated December
16, 2016, the Union demanded immediate parity in wages be-
tween the former Gray Line ticket agents and the JAD ticket
agents at the prevailing JAD wage rates. 9 The Employer did not
agree to the Union’s demand, though the parties began discuss-
ing through telephone conversations, emails and additional in-
person meetings what the remuneration would be for the ticket
agents.
The second in-person meeting took place later that month at
another of the Union’s offices, and again included Ames, Seeger
and Murphy. This time, Ames was accompanied by an employee
bargaining committee. Although the Union had been certified as
the exclusive bargaining representative of the entire unit, be-
cause of the prior history of there having been two separate units,
the Union specifically included a contingent of former Gray Line
employees (formerly represented by Local 225) on its bargaining
committee. Indeed, the Union included as part of its initial bar-
gaining position at this meeting a list of specific demands that
those employees had provided to the Union. These demands
were presented to the Employer in writing at this second in-per-
son bargaining session, the first with the employee bargaining
committee members present.
Included in that list of demands, requested by the former Gray
Line employees and presented by the Union, was a proposal on
how to reconcile what had been two separate preexisting senior-
ity lists now that the two bargaining units had been consolidated.
The Union’s proposal, in accordance with the former Gray Line
employees’ request, was to keep the two then-existing seniority
lists separate. In the alternative, also at the former Gray Line
employees’ request, the proposal was that if the two separate

9 It is undisputed that the former Gray Line employees were earning
substantially less under the terms of their expired Local 225 contract than
the JAD employees were earning under the terms of the Local 1212 con-
tract then in effect.
seniority lists were not maintained, then seniority should be
based on hiring dates at whichever company for which employ-
ees had worked.
Respondent Employer rejected both of those seniority pro-
posals. Instead, while they proposed that the two seniority lists
be consolidated into one, Respondent Employer’s position was
that the former Gray Line agents must follow all JAD agents on
the seniority list for purposes of layoff and schedule/location
bids. This demand, from which the Employer never departed,
was attributed to Janet West’s belief that because JAD was ef-
fectively the “surviving” member of the two employer entities,
seniority for job bidding should be based on the date of hire onto
the JAD payroll.
At this point, Respondent Employer had also proposed that
rather than raising the commission rates of the Gray Line em-
ployees to parity with the JAD ticket agents, it would offer to
raise the commission rates of the Gray Line employees to the
lower “B” rate. This would represent a jump in compensation
for the Gray Line employees, but nevertheless leave them still
earning less than their JAD counterparts. The Union rejected this
proposal, repeating its initial demand that the entire new bargain-
ing unit must be paid at the same commission rate structure based
on their dates of hire, a demand from which it never departed.
Over the holiday weekend that followed, the parties ex-
changed emails on their positions regarding compensation and
seniority, and the Employer consented to providing the Gray
Line employees with the highest rates payable to the JAD em-
ployees, granting them the higher “A” rate, and recognizing their
prior Gray Line seniority in calculating wages, benefits and all
other purposes. However, the Employer continued to insist that
with regard to layoffs and job bids, the Gray Line employees
transitioning to JAD would be placed behind the existing JAD
employees.10
The Union, in its own words in a January 2, 2017 email from
Ames to Murphy, recognized the “significant financial commit-
ment” from the Employer that this rate change represented, and
the resulting significant increase in compensation for those of its
members who had been Gray Line employees. As such, the Un-
ion agreed to the Employer’s demand on seniority in furtherance
of reaching an overall contract, and specifically to secure the
commission rate parity which it felt was of utmost importance.
Following that agreement on seniority, the parties continued
negotiations and ultimately reached a full agreement on a new
CBA effective March 9, 2017. It is undisputed that Respondent
is bound by this most recent CBA, and that its terms now apply
to all of Twin America’s unit employees.
The concept of placing employees transitioning from Gray
Line to JAD on the seniority list based on the date they entered
the JAD payroll was not entirely new. Prior to the election that
consolidated the two units, there were Gray Line employees who
had transferred to JAD, and they did not keep their Gray Line
seniority. Janet West testified she believed JAD employees
would be distressed by moving down the seniority list,
10 It was undisputed at the hearing that no ticket agent has ever been
involuntarily laid off.
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
particularly those who had been with her company from the be-
ginning. But, she also recognized that Gray Line employees
would not be happy to receive lower seniority than their JAD
counterparts.
West testified to her belief that pretty much any agreement
regarding seniority that was reached would negatively affect
someone, and that there was no way to make 100 percent of the
unit happy. Facing that challenge, she testified that the compro-
mise proposed—honoring Gray Line employees’ seniority with
regard to all but two items while giving them substantial raises -
was her best effort to keep the most people reasonably happy.
I found West’s testimony to be credible. Her demeanor was
straightforward and unhesitating, and she explained in detail her
past history dealing with disgruntled employees that helped in-
form her concerns about employee retention and her efforts to
manage that. Her testimony was also consistent with that of
Murphy and Seeger, both of whom I also found credible. All
three of Respondent Employer’s witnesses described a credible
business rationale for the actions taken by them, and the consid-
erable efforts made to reach a reasonable compromise with the
Union on the consolidation of the unit.
I did not find the individual employee witnesses offered by the
General Counsel to be as credible. The two current JAD em-
ployees who had previously been Gray Line employees, Sarafa
Sanoussi and Rufai Mohammed, both claimed to have had their
earning potential harmed by the seniority provision of the new
CBA, yet Sanoussi actually made more money in 2017 than he
had in 2016, and Mohammed made nearly as much money in
2017 than in 2016 despite working as many as 17 fewer days.
And as a group, the former Gray Line employees working for
JAD collectively made well more money in 2017 than they had
in 2016 as well.
I also found the employee witnesses, including Charging Party
Tefe Kwami Amewo, less credible when testifying to having
been told by Murphy and Seeger that the seniority agreement
reached by Twin America and the Union was because “you peo-
ple have lost the election” or because Local 225 had called for
the election. These comments appear to have been taken out of
context in discussions about why the Employer would not enter-
tain the Union’s initial proposal to maintain two separate senior-
ity lists.
Respondent Employers’ Additional Disputed Actions
Following the parties’ agreement on the issue of seniority, Re-
spondent Employer took a number of additional actions to which
the Charging Party objects. On January 5, 2017, Twin America
notified all of its Gray Line employees in writing that they would
be required to transition to employment by JAD effective no later
than April 6, 2017. All 73 Gray Line employees were offered
employment, and 47 of them accepted the offer, and transitioned
to JAD by the effective date. The remaining 26 employees de-
clined to transition.
Charging Party Amewo was among the employees who de-
clined to transition to JAD. As late as April 17, 2017, Twin
America continued to offer Amewo a position with JAD

11 Had the parties agreed to seniority based on original dates of hire
by their respective employers, it would have had the opposite effect,
pursuant to the terms of the parties’ new CBA, but Amewo de-
clined. Since that time, those Gray Line employees who did tran-
sition to JAD, along with the existing JAD employees, have
worked under the terms and conditions of the parties’ most re-
cent CBA.
At all times between the January 5, 2017 notice and the April
6, 2017 transition date, it is undisputed a collective bargaining
agreement was in place between Twin America and the Union -
either the one Twin America had with the Union covering the
City Sights/JAD ticket agents prior to March 9, 2017, or the new
CBA covering all ticket agents beginning March 9, 2017. It is
also undisputed that both those contracts contained a dispute res-
olution procedure that applied to disputes “between the Em-
ployer and the Union, or any group of employees covered by this
Agreement.” There was no inclusion or mention of any separate
procedure, and specifically no mention of individual arbitration
as a mechanism for dispute resolution.
Finally, it is undisputed that the former Gray Line ticket
agents who transitioned to JAD were required to complete cer-
tain paperwork, including “agreeing to individual arbitration of
disputes” which was a term of employment that was a part of the
parties’ CBA, and was not agreed to by the Union. The Em-
ployer concedes that it gave these individual arbitration agree-
ments to employees and required them to sign the package of
paperwork in order to transition to JAD. However, its position
is that these arbitration agreements were included by mistake,
that it later ceased including those forms in its hiring packet, and
that no employee was actually denied employment for refusing
to sign an individual arbitration agreement.
Analysis
A. Respondents Lawfully Negotiated an Agreement Consolidat-
ing Units Based on Legitimate Business Reasons and not on the
Basis of Union Membership
The driving thrust of this case is whether the Respondents vi-
olated the Act by agreeing to a consolidation of two previous
seniority lists into one list that, for purposes of job location bids
and layoffs only, was based on the date an employee joined the
JAD payroll, rather than based on their original date of hire by a
Twin America entity. Because employees formerly employed
by Gray Line did not join the JAD payroll until they transitioned
from Gray Line to JAD between January and April 2017, this
agreement had the effect of “end tailing” or placing all of the
former Gray Line employees behind the existing JAD employees
on the new seniority list.11
As an initial matter, the issue of seniority rights is typically
one negotiated between an employer and a union, stemming
from the principle that “seniority arises only out of contract or
statute,” and thus is “not an incident of employment.” NLRB v.
Whiting Milk Corp., 342 F.2d 8, 10 (1st Cir. 1965). Although
seniority is not a right specifically provided for in the Act, the
Act does prohibits an employer and/or a union from discriminat-
ing against employees in the application of seniority for unlawful
discriminatory reasons, or in the case of a union for merely arbi-
trary reasons.
placing all of the former Gray Line employees ahead of the existing JAD
employees.
TWIN AMERICA, LLC, 7
While seniority is not an absolute right of employment, the
right to end tail a portion of employees when two units consoli-
date is also far from absolute. During a merger of two sets of
employees that were previously represented by different unions,
as here, it would be unlawful under the Act to determine the sen-
iority of the merged employees based on their union representa-
tion alone. In contrast, an employer and union may come to a
seniority agreement that distinguishes employees based upon “a
bona fide attempt to resolve a problem frequently arising from
business merger.” Simon Levi Co., 181 NLRB 826, 827 (1970).
In other words, it must be based upon legitimate business con-
siderations such as skill, unit seniority, changes in the job de-
scription or work environment and preexisting seniority rights.
The Board has found unlawful discrimination in seniority agree-
ments where membership in one union over another is encour-
aged and where irrelevant and discriminatory considerations are
present. For example, requesting and agreeing to a seniority sys-
tem based solely on the date employees became members of a
specific union is clearly unlawful conduct. International Broth-
erhood of Teamsters, Local 727, 360 NLRB 65, 71 (2013). In
that case, the Board specifically found that “preferences granted
on the basis of any membership considerations [are] unlawful.”
Id. at 71.
In finding such unlawful conduct, the Board noted that the un-
ion would violate 8(b)(1)(A) of the Act even if there was no
proof of bad faith “since arbitrary conduct without evidence of
bad faith has been found to constitute a breach of the duty” of
fair representation. Id. at 72. Thus, if employees were end tailed
for arbitrary reasons, rather than based on the status of their un-
ion membership, the Union could still be found to have violated
the Act.
When deciding whether a factor in determining seniority is
unlawful under the Act, the Board also prohibits conduct that
“discriminatorily encourages membership in one local over an-
other.” See Reading Anthracite Co., 326 NLRB 1370 (1998). In
Reading, the Board found that the choice to end tail seniority
based on the date that employees received their transfer cards
from one union to another was unlawful because that was an “ir-
relevant and discriminatory consideration.” Reading Anthracite
Co., 326 NLRB at 1371.
The Board in Reading Anthracite Co. pointed out that this date
“did not coincide with any change in the employees' job duties,
assignments, classifications, or work locations.” Id. at 1370. The
Board’s language in Reading suggests that, had the employer
opted to delegate seniority according to some change in the work
environment, the choice to end tail seniority might not have been
unlawful. See Reading Anthracite Co., 326 NLRB at 1370.
Indeed, end tailing seniority may be lawful where there are
legitimate considerations that justify the disparate treatment. For
example, the Board has held that an alleged discrimination in
seniority by an employer was lawful conduct where the prefer-
ences were “skill based.” Newspaper and Mail Deliverers’ Un-
ion of New York, 361 NLRB 245, 249–250 (2014). The Board
has further suggested that an employer may lawfully end tail a

12 JAD apparently had those higher commission rates because Gray
Line, due to its long history in the industry and not having had a contract
or raise for 3 years, had fallen behind.
set of employees where the objective of such an approach is to
respect preexisting, enforceable seniority rights which were not
based on length of service alone. Interstate Bakeries Corp., 357
NLRB 15, 18 (2011).
The Board has also held that discrimination on the basis of
unit seniority, as opposed to union seniority, is allowable. See
Interstate Bakeries Corp., 357 NLRB at 17 (“A union and an
employer do not discriminate in a manner prohibited by the Act
by contracting to vest certain employment rights based on sen-
iority in a represented unit.”). Under this distinction, where an
employee has worked for another employer and then has been
placed into an existing unit after his company has been pur-
chased, this employee may be lawfully end tailed based on his
lack of unit seniority. Id. However, it would be unlawful for
parties to place employees at the end of the seniority list because
they were unrepresented by a particular union, or any union, in
their prior employment.
When negotiating seniority rights during a merger, a union
must bargain for employee benefits within the units it represents
without simultaneously relegating non-union employees to an
inferior status. See NLRB v. Whiting Milk Corp., supra., 342
F.2d at 11. Significantly, a union also cannot balance competing
interests among different groups of employees it represents for
mere political reasons or to placate the majority at the expense
of a minority. Teamsters Local 42 (Daily, Inc.), 281 NLRB 974
(1986).
Finally, the Supreme Court has held that even where there
may be legitimate business reasons for challenged conduct, and
in the absence of anti-union animus, the Board can still find an
unfair labor practice if the actions taken by an employer are in-
herently destructive of employee rights. NLRB v. Great Dane
Trailers, Inc., 388 U.S. 26 (1967).
The General Counsel maintains that by agreeing to the end
tailing of seniority here, even though only for job location bids
and layoff, the Employer and the Union were unlawfully dis-
criminating against employees because of their former union
membership in Local 225 while employed by Gray Lines.
The Employer denies that employees’ former membership in
Local 225 played any role in its position. It takes the position
that because commission rates in the JAD agreement were sig-
nificantly higher than commission rates in the Gray Line agree-
ment, the former Gray Line employees would be receiving sub-
stantial increases in compensation while the JAD employees
would not.12 As such, these employees were receiving lesser
seniority not because of anything to do with their former union,
but because they were receiving that significant increase in com-
pensation that longtime JAD people were not, and the Employer
was trying to keep its entire workforce reasonably satisfied.
The Union takes the position that it is not uncommon for un-
ions to try to reach a balance between conflicting interests of dif-
ferent groups of employees it represents. It argues this is the case
whether it involves the same bargaining unit that has existed in
the past between employees of different classifications with dif-
ferent interests, or under the circumstances that are presented
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
here. It also denies that employees’ former membership in a dif-
ferent union played any role in its decision. Instead, it maintains
that it agreed to the seniority plan as a compromise to secure the
pay parity that it deemed to be of primary importance to those
very same employees.
I find the General Counsel’s argument that the agreement be-
tween Respondent Employers and the Respondent Union was
motivated by antiunion animus to be unpersuasive. The General
Counsel has not shown that prior union membership of the for-
mer Gray Line employees played any role in the decision to end
tail their seniority. Rather, every indication is that the Em-
ployer’s desire to end tail the seniority of those employees was
based on its legitimate concern that using straight seniority
would result in the entire former Gray Line work force leapfrog-
ging past the JAD employees in seniority.
Janet West’s assertion that she did not want to have the JAD
employees who had been with her since the founding of City
Sights all be placed below the former Gray Line employees in
seniority is reasonable and credible. And, I find it had nothing
to do with the union that formerly represented the former Gray
Line employees.
In the absence of anti-union animus, and given the legitimate
reasons articulated by the Respondents for their seniority agree-
ment, the only remaining question is whether that agreement was
inherently destructive of important employee rights under Great
Dane. I find that it was not. This is not a situation where an
employer has favored one union over another, or union members
over non-union members. All of the Respondent Employer’s
unit employees are represented by the same union, and had been
for months when the new seniority agreement went into effect.
There is no competing union or other employee concerted activ-
ity that is being chilled or has otherwise been interfered with.
Accordingly, Respondent Employers did not violate Section
8(a)(3) and (1) by end tailing the seniority dates of Gray Line
ticket agents, and Respondent Union did not violate Sections
8(b)(1)(A) and (2) by agreeing to the same.
B. Respondent Employers Lawfully Separated Employees Who
Declined to Transition to JAD Under the Parties’
Agreed-Upon Terms
The General Counsel argues that Respondent Employer did
not need to take any specific action upon the elimination of the
Gray Line payroll and the resulting transition of the former Gray
Line employees to the JAD payroll. Instead, the General Coun-
sel asserts that by requiring that transition, Respondent was
demonstrating anti-union animus and motive.
I find this ignores the reality of the situation the Employer
faced and the legitimate business concerns it has articulated. The
outsourcing of labor from Gray Line to JAD was much more sig-
nificant than simply adding a list of names to the payroll, as ev-
idenced by the years of past litigation over which employees
worked for which entities. And, consolidating its workforce un-
der one employing agency and payroll was a reasonable step for
the Employer to take, with negligible impact on its employees.
Indeed, the process of laying off the former Gray Lines em-
ployees in this case was essentially no different from the simple
administrative process that the General Counsel suggests the
Employer might have used to transition those employees. Every
employee was offered continuing employment under the terms
of the new collective bargaining agreement covering all JAD em-
ployees. A majority of those employees accepted their offers and
continued working without interruption. Those who declined to
work for JAD because they objected to the CBA negotiated be-
tween their Union and their Employer were in no different posi-
tion than any other JAD employee who might decline to work
because of objections to their contract.
Accordingly, I find that Respondent Employers did not violate
Section 8(a)(3) and (1) by requiring the former Gray Line ticket
agents to accept their end tailed seniority dates as a condition of
rehire, or by terminating those agents who declined to transition
to JAD under the parties’ agreed upon terms.
C. Respondent Unlawfully Modified the Collective-Bargaining
Agreement with the Union to Require Employees to Agree to
Individual Arbitration as a Condition of Employment
Section 8(a)(5) of the Act establishes an employer’s obliga-
tion to bargain in good faith with respect to “wages, hours, and
other terms and conditions of employment.” An employer may
not unilaterally institute changes regarding these mandatory sub-
jects before reaching a good-faith impasse in bargaining. See St.
Vincent Hospital, 320 NLRB 42, 45 (1995).
Section 8(d) imposes an additional requirement when a col-
lective-bargaining agreement is in effect and an employer seeks
to “modif[y] . . . the terms and conditions contained in” the con-
tract. In such instances, the employer must obtain the union's
consent before implementing the change. In order to prove that
a respondent violated Section 8(d), the General Counsel must
identify a specific term “contained in” the contract that the re-
spondent has acted to modify. Milwaukee Spring Division, 268
NLRB 601 (1984).
Here, both the collective-bargaining agreement Twin America
had with the Union covering the City Sights/JAD ticket agents
prior to March 9, 2017, and the new CBA covering all ticket
agents beginning March 9, 2017, contained a dispute resolution
procedure that applied to disputes “between the Employer and
the Union, or any group of employees covered by this Agree-
ment.” There was no inclusion or mention of any separate pro-
cedure, and specifically no mention of individual arbitration as a
mechanism for dispute resolution.
It is undisputed that the former Gray Line ticket agents who
transitioned to JAD were given certain paperwork to complete,
including agreeing to individual arbitration of disputes. Dispute
resolution was a term of employment that was already a part of
the parties’ CBA, and a change to that was not agreed to by the
Union. This was not an insignificant issue, as the resolution
mechanism for disputes is at the heart of a union’s role as the
collective-bargaining representative of the unit.
As such, I find that Respondent Employers unlawfully modi-
fied the collective-bargaining agreement with the Union to re-
quire employees to agree to individual arbitration as a condition
of employment.
CONCLUSIONS OF LAW
1. Respondent Employers, Twin America, LLC, City Sights
NY, LLC, Gray Line New York Tours, Inc. and JAD Transpor-
tation, Inc. are employers engaged in commerce within the
TWIN AMERICA, LLC, 9
meaning of Section 2(2), (6), and (7) of the Act.
2. Respondents Twin America, LLC, City Sights NY, LLC
and Gray Line New York Tours, Inc. are a single employer, and
are joint employers with Respondent JAD Transportation, Inc.
3. The Union, United Service Workers Union, IUJAT, Local
1212, is a labor organization within the meaning of Section 2(5)
of the Act and represents a bargaining unit comprised of workers
employed by the Respondents.
4. Since in or about January 2 through April 6, 2017, Re-
spondent Employers have committed unfair labor practices
within the meaning of Section 8(a)(5) and (1) and (d) of the Act
by unlawfully modifying the collective bargaining agreement
with the Union to require employees to agree to individual arbi-
tration as a condition of employment.
5. The Respondent Employers' above-described unfair labor
practices affect commerce within the meaning of Section 2(6)
and (7) of the Act.
6. The above violation is an unfair labor practice within the
meaning of the Act.
7. Respondents have not otherwise violated the Act.
REMEDY
Having found that the Respondent Employers engaged in con-
duct in violation of Section 8(a)(5) and (1) and (d) of the Act, I
shall recommend that it cease and desist from engaging in such
conduct and take certain affirmative action designed to effectu-
ate the policies of the Act.
In particular, I shall recommend that, to the extent it has not
already done so, Respondent Employers shall cease and desist
from soliciting individual arbitration agreements from employ-
ees, and that it cease and desist from using signed individual ar-
bitration agreements previously obtained from employees for
any purpose.
I shall also recommend that Respondent Employers be re-
quired to notify employees that they will not alter the dispute
resolution procedure provided for in the parties’ CBA, which
does not require employees to arbitrate disputes with the Re-
spondent Employers individually.
As to the remainder of the complaint, I recommend dismissal.
Therefore, Respondent will be ordered to post and communi-
cate by electronic post to employees the attached Appendix and
notice. On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended13
ORDER
Respondents, Twin America, LLC, City Sights NY LLC and
Gray Line New York Tours, Inc. New York, New York, as a
single employer, and JAD Transportation, as joint employers, its
officers, agents, and representatives, shall
1. Cease and desist from
(a) Soliciting individual arbitration agreements from unit em-
ployees and/or using signed individual arbitration agreements
previously obtained from unit employees for any purpose.

13 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended Or-
der shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all purposes.
(b) In any like or related manner interfering with, restraining
or coercing its employees in the exercise of the rights guaranteed
to them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectu-
ate the purposes and policies of the Act.
(a) Notify unit employees that the Respondent Employers will
not alter the dispute resolution procedure provided for in the par-
ties’ CBA, which does not require employees to arbitrate dis-
putes with the Employer individually, and that any previously
signed individual arbitration agreement is rescinded.
(b) Within 14 days after service by the Region, post at each of
its New York locations copies of the attached notice marked
“Appendix.”14 Copies of the notice, on forms provided by the
Regional Director for Region 2 after being signed by Respond-
ent’s authorized representative, shall be posted by Respondent
and maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are customarily
posted. In addition to the physical posting of paper notices, the
notices shall be distributed electronically, such as by email, post-
ing on an intranet or internet site and/or other electronic means,
if Respondent customarily communicates with its employees by
such means. Reasonable steps shall be taken by Respondent to
ensure that the notices are not altered, defaced or covered by any
other material. In the event that, during the pendency of these
proceedings, Respondent has gone out of business or closed the
facility involved in these proceedings, Respondent shall dupli-
cate and mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by Respondent
at any time since January 2, 2017.
(c) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that Re-
spondent has taken to comply.
Dated, Washington, D.C. March 20, 2019
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 the National Labor Relations Act and has ordered us to post
and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of their
own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected con-
certed activities.
14 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL NOT do anything to prevent you from exercising the
above rights.
WE WILL NOT make unilateral changes to terms and conditions
of employment without first bargaining with the Union, United
Service Workers Union, IUJAT, Local 1212.
WE WILL NOT alter the dispute resolution procedure provided
for in the parties’ collective-bargaining agreement without the
consent of the Union.
WE WILL NOT in any like or related manner fail and refuse to
bargain collectively and in good faith with the Union as the ex-
clusive collective-bargaining representative of our employees in
the unit or otherwise interfere with your rights under Section 7
of the Act.
WE WILL cease soliciting individual arbitration agreements
from unit employees.
WE WILL cease using previously obtained individual arbitra-
tion agreements for any purpose, pending bargaining with the
Union.
TWIN AMERICA LLC, CITY SIGHTS NY, LLC, AND
GRAY LINE NEW YORK TOURS, INC.
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/02-CA-190704 or by using the QR code be-
low. Alternatively, you can obtain a copy of the decision from
the Executive Secretary, National Labor Relations Board, 1015
Half Street, S.E., Washington, D.C. 20570, or by calling (202)
273-1940.
0