Acme Bus Corporation

National Labor Relations Board - Administrative Judge Opinions

Feb 17, 2010

02-CA-028981 (N.L.R.B. Feb. 17, 2010)

JD(NY)-02-10
Middletown, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
ACME BUS CORPORATION
and Case Nos. 2-CA-38981
2-CA-39422
INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, LOCAL 445
Gregory B. Davis, & Rachel F. Preiser, Esqs.
for the General Counsel.
John K. Diviney, Esq., (Rivkin, Radler, LLP),
Uniondale, NY, and Alan B. Pearl, Esq.,
(Alan B. Pearl & Associates),
Syosset, NY, for the Respondent.
DECISION
Statement of the Case
STEVEN DAVIS, Administrative Law Judge: Based on a charge and a first, second,
third and fourth amended charge in Case No. 2-CA-38981 filed by International Brotherhood of
Teamsters, Local 445 (Union) on September 29, December 8, 2008, January 29, February 28,
and March 12, 2009, respectively, an amended complaint was issued on July 15, 2009 against
Acme Bus Corporation (Respondent, Employer or Acme). Based upon a charge and an
amended charge in Case No. 2-CA-39442 filed by the Union on August 5 and October 1, 2009,
respectively, a complaint was issued in that case on October 8, 2009. The General Counsel’s
motion to consolidate the two complaints for hearing was granted over the Respondent’s
objection.
The complaint,1as amended at the hearing, alleges that the Respondent (a) promulgated
and maintained rules prohibiting union solicitations and distributions and discussing the Union at
work (b) engaged in surveillance by spying on employees who attended a Union meeting (c)
created the impression of surveillance by informing employees that the Respondent was
monitoring employees who attended a Union meeting (d) interrogated employees about their
union activities and the union activities of other employees and directed employees to induce
other employees to sign a petition against the Union (e) subjected employees to closer scrutiny
in retaliation for their support of the Union (f) threatened employees with discipline and other
unspecified reprisals (g) engaged in surveillance of employees to discover their union activities
(h) threatened to call the police and called the police to remove a union representative who was
distributing flyers to employees in order to interfere with employees seeking information from the
Union and (i) engaged in surveillance by videotaping employees.2

1 The consolidated complaints will be hereafter referred to as the “complaint.”
2 The General Counsel’s brief requested withdrawal of paragraph 10 (i) of the complaint,
that the Respondent created the impression of surveillance by its informing employees that it
believed that they were at a particular location which employees used for union meetings. The
request is granted.
Continued
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The complaint also alleges that the Respondent discharged employees Miosotis Mieses,
Penny Kuhhorn, Eileen Haskell, Catherine Pomella, Roberta Cheatham and Paula Mercado
because of their Union and concerted activities. The complaint further alleges that on about
September 16, 2008, the Union represented a majority of the unit employees, and that because
the unfair labor practices set forth above are so serious and substantial in character that the
possibility of erasing their effects and conducting a fair election is slight, and inasmuch as the
employees’ sentiments regarding representation having been expressed through authorization
cards, those sentiments would be protected better by the issuance of a bargaining order than by
traditional remedies alone.
The Respondent’s answer denied the material allegations of the complaint and a hearing
was held on 11 days between September 22 and November 2, 2009 in New York, NY.
Upon the evidence presented in this proceeding and my observation of the demeanor of
the witnesses and after consideration of the briefs filed by the General Counsel and the
Respondent, I make the following:
Findings of Fact
I. Jurisdiction and Labor Organization Status
The Respondent, a domestic corporation having its place of business located at 12
Fulton Street, Middletown, NY, has been engaged in the operation of school transportation of
special needs children. Annually, in conducting its business operations, the Respondent
purchases and receives at its place of business goods and supplies valued in excess of $50,000
from suppliers located directly outside New York State, and during the same period, the
Respondent derives gross revenues in excess of $1,000,000. The Respondent admits, and I
find that it is an employer engaged in commerce within the meaning of Section 2(2), (6) and (7)
of the Act. The Respondent also admits and I find that the Union has been a labor organization
within the meaning of Section 2(5) of the Act.
II. The Alleged Unfair Labor Practices
A. The Employer’s Business
Acme is a subsidiary company of Baumann & Sons Buses, Inc. whose headquarters is
located in Ronkonkoma, Long Island, New York. Baumann’s human resources director, James
Poisella and his assistant Maureen Oulette, are responsible for major personnel decisions of
Baumann’s 2,000 employees employed by Baumann and other subsidiary companies. He or
Oulette review the supporting documentation for discipline and make the appropriate decision
regarding discipline.
Acme is a bus company which provides transportation for “special needs” passengers in
Orange County, New York, the location of this dispute, and also on Long Island. In the early
Spring, 2008, Acme bid on and won the contract to provide such a service in Orange County. Its
_________________________
The General Counsel also, in the brief, moved to amend paragraph (i), above, to allege that the
Respondent created the impression of surveillance of employees by videotaping employees and
withdrew the allegation in that paragraph that it engaged in surveillance by videotaping
employees.
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terminal manager when the operation began was Tom Mattingly, and the assistant terminal
manager was Charles Mazzei. On September 1, 2008, Mattingly was fired, Mazzei became the
terminal manager, Danea Morris-Wolven3, who was then the dispatcher, became the assistant
terminal manager, and Cyndee Cuddy became the dispatcher. In July, 2009, Wolven was
demoted to dispatcher and Cuddy was promoted to assistant terminal manager.
Acme’s Orange County operation was to begin with the summer session on July 1,
2008. First Student, Inc., a school bus company which lost the contract, apparently had
recognized the Union as the collective-bargaining representative of the unit employees there.
According to Jerry Ebert, the Union’s business agent and director of organizing, negotiations
had not yet started with First Student when that company lost the contract.
Acme sought to hire any First Student employee who was otherwise qualified for hire
and it obtained from the Union a list of 165 First Student workers. Acme expected to fill its
complement of 115 to 120 employees from the former First Student ranks. However, only 35
First Student workers were hired, and the rest of the employees were hired from
advertisements. Employee Tammy Bartula who had worked at First Student stated that the
Employer’s officials knew that the First Student employees had just voted for the Union and
encouraged her to have her former colleagues apply for jobs with Acme.
Acme began its operation with 55 buses in a temporary facility on the grounds of a
medical facility and then moved in mid August, 2008 to a permanent facility on Fulton Street in
Middletown, New York which contains the office of the terminal manager Charles Mazzei, a
dispatcher’s office, break rooms for the drivers, and parking lots for the buses and employees’
personal vehicles. At the time of the hearing it operated 67 buses.
B. The Nature of the Population Served by Acme
The children transported are of pre-school age, between 3 and 4½ years old, having
emotional, learning and/or physical disabilities. Special rules for their transportation set forth in
the agreement between Orange County and the Employer include a requirement that they
cannot be on the bus longer than 75 minutes, must have special car seats, safety vest or
wheelchair hook up, and that each bus have a monitor or matron.
Each bus has a driver and monitor. The monitor assists the child onto and off the bus,
and makes certain that the child’s seat belt is fastened. The bus is equipped with a radio
enabling the driver to be in contact with Acme’s dispatcher. Normally, the radio is used for such
communications, but at times when an emergency is being handled by radio, drivers are
advised to communicate with the dispatcher by their own personal cell phone.
The Orange County Department of Health contracts with a service company to provide
transportation management and oversight for the preschool contract with Acme. Servisair was
the first management company and then, on January 1, 2009, VMC Group, Inc. provided that
service. Each management company had an elaborate set of rules that Acme was required to
follow and it is clear, as will be set forth below, that each exercised extremely careful control of
Acme’s operations relating to the transportation of the children. Incident reports are completed
by the driver and monitor and are faxed to VMC the same day as required in the contract
between the management company and the Employer. In cases of misconduct by Acme’s
employees, the management company had the power to fine the Employer, disqualify drivers

3 Ms. Morris-Wolven will be referred to hereafter as “Wolven.”
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and monitors, and make recommendations to Acme relating to its workers.
C. The Union’s Organizational Campaign
1. Employees’ Efforts in Behalf of the Union
Union director of organizing and business agent Jerry Ebert stated that he believed that
the Employer may have agreed to recognize the Union following its winning the contract with
Orange County, but “talks fell through.”
In late July, or early August, 2008, employee Penny Kuhhorn phoned Union agent Cindy
Garlinghouse and was told that no contract negotiations between the Employer and the Union
were being held. Kuhhorn volunteered that several drivers were interested in the Union, and
Garlinghouse said she would meet them. Shortly thereafter, Garlinghouse met with Kuhhorn
and her monitor Miosotis Mieses at the end of the driveway at the temporary facility. About 10 to
20 employees joined them. Garlinghouse told the group that there were no negotiations
between the Employer and the Union, and that if the workers wanted a union they would have to
sign cards. She gave Kuhhorn a few authorization cards but asked her to wait until the Union
advised the Employer that she would be distributing them.
Ebert met with driver Penny Kuhhorn and her monitor Miosotis Mieses directly outside
the Employer’s permanent facility in mid August, 2008, and gave Kuhhorn a flyer for a meeting
scheduled for August 19 at a local restaurant. He asked her to distribute the flyers on non-work
time in the parking lot and also asked her to encourage her co-workers to attend the meeting.
Kuhhorn and Mieses told Ebert that they were nervous and he suggested that the only way they
can protect themselves was to notify the Employer that they were organizing, so that if
“something bad happens” they would have proof that the Employer was advised of their
activities in advance.4
Mieses testified that, at that time, she and Kuhhorn met Bob Calli, an assistant manager,
near the mechanic’s facility, and Mieses advised him “we’re here to tell you that we are involved
in a union fully. We were giving flyers to everyone. We will give it to them when they finish their
runs. So we’re going to be here in the parking lot.” Calli told them to be careful because the
Union was “just after your money.” Mieses stated that they saw Mazzei looking through the
window and he came out of the building yelling “I don’t want that guy here. That guy cannot be
here. You cannot be doing that in the company yard. Mieses stated that she told Mazzei “I just
came to tell you that I’m fully involved in the union and we are giving flyers to the people that are
interested.” Mazzei yelled “you cannot do that.” Human resources director Poisella testified that
Mazzei informed him that Union representatives visited the premises in about August, 2008 and
spoke to employees.
Kuhhorn stated that she and Mieses went into the building, showed Mazzei the flyer and
Kuhhorn said that she wanted to hand them out. Mazzei replied that they “couldn’t do it on
company property.” Kuhhorn then called Ebert and told him what Mazzei said. Ebert said that he
would call the company attorney. Ebert testified that he called Employer attorney Mark Portnoy
and told him that Mazzei prohibited their distribution of literature on nonwork time. Portnoy
agreed with Ebert that Mazzei was wrong and said that he would take care of it. Kuhhorn stated
that Ebert then told her that the Employer’s attorney said that she could distribute literature on

4 Ebert’s pre-trial affidavit stated that he advised them to tell Mazzei that they intended to
handbill during nonwork hours.
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nonwork time.
Employee Pomella signed a Union card on August 15, 2008 that was given to her by
Ebert that day on the sidewalk bordering the facility. Pomella stated that she received blank
cards from Ebert in August, and told manager Bob Calli at that time, with Mieses and Haskell
present, that Ebert gave her Union cards and he asked that they request permission before they
distributed them. Calli asked to see a card and Pomella gave him one which he read. Calli said
that he was familiar with Teamsters 445. Mazzei approached them and asked Pomella what she
was doing. Pomella replied that she was requesting permission to distribute the Union cards.
Mazzei retorted that she could not do so on company property. Pomella apologized. Calli gave
Mazzei the Union card, and Mazzei took the card and left the area.
The Employer’s handbook states as follows:
Solicitation, or sale of goods, is not allowed on Baumann premises
by non-Baumann representatives during working time. Distribution
of other than Baumann approved materials is prohibited during
working hours in working areas and on Baumann company
property. Breaks, lunch, before and after work is considered non-
working time. Our employees may sell goods or solicit
contributions during non-working hours, in non-working areas on
the condition it does not interfere with Baumann activities or
services.
Mazzei testified that in mid August, 2008, he was told by employees that Kuhhorn was
“blocking the entry of buses.” He saw Kuhhorn standing near Union agent Garlinghouse in the
center of a narrow area where the buses entered. They were both handing out flyers. He
observed that buses could not pass unless they stopped for her. He saw one or two buses enter
when he approached her. Mazzei stated that he asked Kuhhorn to stop blocking the buses and
move away. Kuhhorn moved away and stood next to Garlinghouse. Mazzei did not know how
many buses were blocked and noted that Kuhhorn engaged in this activity after she had
completed one of her runs. Mazzei did not issue a written warning because Kuhhorn
immediately complied with his order to move. Mazzei denied that Kuhhorn asked for permission
to distribute the flyers. Mazzei called Poisella who told him his actions were correct. He denied
having any other conversation with Kuhhorn relating to the distribution of literature.
Kuhhorn stated that she distributed authorization cards to employees outside the facility,
advising about 12 workers them that she had cards if anyone wanted to sign them. She asked
workers to sign the cards, telling them that their purpose was “so we can try to get the Union in;
and that if they were interested in it, please sign…. But that was the bottom line that this was to
help get the Union in to protect our jobs.”
Wolven testified that the Union was first brought to her attention in early August, about
one month before she was promoted to assistant terminal manager when Mazzei mentioned to
her that “they were trying to bring the Union in to us and that he wasn’t going to have a union
here. That we didn’t need the union.” Mazzei showed her the flyer announcing the August 19
Union meeting.
2. The Discharge of Miosotis Mieses
Mieses began work for the Employer in July, 2008 as a monitor. She worked with Penny
Kuhhorn. Mieses stated that when the operation first began she did not receive eight hours of
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work, so apparently Kuhhorn asked for and received permission to take the bus to a gas station
for fuel. The extra time taken in fueling the bus was paid by the Employer. Since Mieses went
with Kuhhorn to fuel the bus she also was paid for the extra time for about two or three weeks.
Some time later, Mieses asked Mazzei and assistant terminal manager Tom Mattingly
why her pay check was lower than usual. They told her that she should not be fueling buses.
Apparently, only one person, the driver, was needed for this task and the Respondent did not
want to pay monitors to assist in this endeavor. She agreed not to fuel the bus and no longer did
so. She also denied adding time for fueling to her time sheet after she was told not to fuel the
buses. Thereafter, she waited on her bus for another bus to take her to the facility or just waited
in the bus until the next run had to be made.
Mazzei testified that monitors were not assigned fueling work because there was no
such work for them to do. He stated that any money Mieses received for the extra time in fueling
was not authorized. Rather, the monitors were picked up at the gas station by other buses
returning to the facility.
As set forth above, Mieses and Kuhhorn met with Garlinghouse and then Ebert in early
August near the facility and received flyers to distribute, and Mieses told mangers Mazzei and
Calli that she and Kuhhorn were organizing for the Union and distributing flyers, and they were
told that they could not distribute flyers on company property. As set forth above, Pomella stated
that Mieses was with her in August when Pomella told managers Mazzei and Calli that they
would be distributing Union cards. Mazzei told her that they could not do so on company
property.
On August 15, 2008, Kuhhorn and Mieses did a run in the morning. When they returned,
Mazzei asked them to do an extra run. Kuhhorn protested that Mieses could not go on that run
since she had to take a test to be a driver for the company, but they agreed to do the run and
did so. When they returned, Mazzei told Mieses that her three month probationary period had
ended and that her services were no longer needed. According to dispatcher Wolven, Mazzei
told her that she was not “working out.” An employee status report written by Wolven and dated
August 15, 2008, states that Mieses was “disrespectful to management, argumentative on
several occasions.”
Wolven wrote a memo which stated essentially that she and Mazzei terminated Miosotis:
Due to her constant disrespectful attitude and behavior towards
the office staff and management. On several occasions Miosotis
has argued with the dispatcher over turning in paperwork and her
pay sheets. She was informed … several times that the monitors
do not get paid for fueling the buses but she continues to keep
marking it on her pay sheets. She was told that just because her
driver was fueling other buses, that she was not entitled to it. She
was told she was to come back to base but she insisted to stay
with her driver. When she spoke to the girls in the office, her tone
towards the girls is rude and disrespectful. She brought down
morale in the office. She made the girls in the office very
uncomfortable when she came to the dispatch window because
there was always an argument. Charlie and I felt it was best to
terminate a person like this before her 90 days probation period
was up to help avoid anymore conflict in the office.
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Mieses denied that Wolven told her she was rude and disrespectful to her and other
dispatchers. Wolven testified that she typed that memo to accompany the above employee
status report, stating that Mazzei told her what to include in the memo, but in fact Wolven
testified that the comments in the memo were correct. Indeed, regarding the bus-fueling issue,
Wolven stated that the Employer paid Mieses for fueling buses but it was the understanding that
the monitors would return to the yard and not assist in fueling the bus. Mieses disregarded
instructions twice and continued to include in her time sheet the time for fueling the bus “after
she was specifically told not to.”
Wolven stated that Mieses was first told in mid July5 not to fuel the buses, and that issue
continued in the week ending August 9.
Two time sheets were received in evidence.6 One, for a week in mid-July, shows that
she worked on July 15-18, and claimed payment for, and was paid for fueling the bus on July
16, 17 and 18. The other, for the period August 4-8, shows that on Monday, August 4, she
claimed payment for, and was paid for fueling the bus. However, she did not claim payment for
fueling the bus for any other day that week. Rather, on August 6, she wrote on her time sheet
that “Penny [Kuhhorn, her driver] call [sic] and wait for some one to bring me to base.”
Accordingly, after being told that she could not be paid for fueling the buses, she apparently did
not do so, according to the time sheets in evidence. Instead, she waited for another vehicle to
return her to the facility, as demonstrated in the time sheet notation for August 6. If she was paid
for that waiting time, she was entitled to such payment, as Mazzei testified, if she waited for 15
minutes to be picked up.
Accordingly, I find, as testified by Mieses that the last time she requesting payment for
fueling the buses was on August 4, and did not thereafter make such a request. There is no
written evidence that she made such a request after August 4. The only written evidence that
has been offered in evidence is that on August 6 she waited to be returned to the base and did
not fuel the bus that day.
Wolven testified that a few days before Mieses was fired, Mazzei told Wolven that
Mieses was “a big union supporter” and that “we were getting rid of another union supporter.”
Poisella stated that the discharge of Mieses was approved by the human resources
department but he was not involved in that decision because he was not at work in that period
of time. On June 10, 2009, Mieses was offered unconditional reinstatement to her former
position.
Mazzei testified that the human resources department asked for his recommendation
concerning Mieses, and he recommended that she be fired. He recalled that in July and August,
dispatcher Wolven told him that Mieses was “very uncooperative” with the dispatcher, was not
following her instructions, was entering the bus at unauthorized times, was “rude and
obnoxious” and that she recommended her discharge. Mazzei stated that he was not aware that
Mieses had been involved in any Union activity and denied that she spoke to him regarding
distributing Union literature. Mazzei further denied that he and Wolven spoke about Mieses’
involvement in union activities.

5 The transcript records that the first time she was warned was in mid-August, an obvious
error.
6 G.C. Exs. 15, 16.
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The employee handbook contains no mention of a probationary period. It states that
after ninety days of employment, employees receive certain benefits. Mazzei testified that
employees were not notified in writing of the probationary period. However, Mazzei stated that
the Employer has an unwritten “formal review process” at the end of an employee’s ninetieth
day of work where an employee is evaluated. He termed that 90 days a “probationary period.” If
an employee is “not up to standards” within 90 days she is terminated. He mentioned the names
of other employees who were dismissed within 90 days of the start of their employment. Wolven
also confirmed that other employees were fired within 90 days of their hire.
3. The August 19 Union Meeting
On August 19, a Union meeting was held at a restaurant. Ebert, Garlinghouse and 30 to
40 employees were present. Ebert told the group that he expected that the Employer would
recognize the Union as the exclusive agent of the employees but that did not occur, but that
“there were some indications [by the Respondent’s counsel] that if we gathered a substantial
amount of cards, a strong majority of cards that we might be able to obtain recognition.” He
told them that there would be no Union dues until after a contract was signed. Ebert stated that
90% of those present signed cards at the meeting which he and Kuhhorn collected by going to
each of the 15 tables and taking the signed cards from the workers.
Kuhhorn stated that before the cards were distributed, the Union representatives said
that “these were not anything binding. They were just so that the Union could start negotiations
and see how about getting the Union in. It was basically something that would give them
permission to talk to the company as far as getting the Union in.” Employees Pomella and
Haskell stated that they saw employees sign cards at the meeting. Haskell stated that Ebert
spoke about why the workers should be part of the Union and what it would accomplish for
them, including job security.
Kuhhorn signed a card at the meeting and gave it to Ebert. She saw that other
employees signed cards at that time. Kuhhorn stated that Timothy “Cowboy” Kellison, a driver,
was at the meeting. Employee Christopher Hagelmann attended the August 19 meeting.7 He
stated that he signed a card at that meeting and saw employees sign and return cards that were
given to them at the meeting.
Regarding her solicitation of employees, Kuhhorn, in answer to a question on cross-
examination Kuhhorn answered “yes” to the question “did you understand that the purpose of
the cards was to get an election?” Also, in answer to the question “is it correct that the reason
that you told people to sign the cards was only for an election to get a union in?” Kuhhorn
answered “yes.”
Kuhhorn also testified that when soliciting employees to sign cards she told them it was
to “try to get the Union in here. It was not an obligation. If they wanted the Union in to sign the
card and give it back or mail it.” She received four signed cards and gave them to Ebert in the
week following the meeting.
Hagelmann also stated that he gave cards to 43 workers on separate occasions but not
on company property and that all of them returned signed cards to him. He first stated that the

7 Hagelmann was confused as to the date of the meeting. His testimony that he attended a
meeting in July is clearly wrong, but then stated that he signed a card, dated August 19, at the
first meeting he attended.
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workers did not sign the cards in front of him, but then said that most did so. He gave the signed
cards to Garlinghouse. When he solicited their signatures he told the employees that the
purpose of the cards was that “we’re going to try to start a union here.” He did not tell them that
their purpose was to try to get an election or only for an election.
4. Mazzei’s Questioning Employees About the Meeting
Hagelmann testified that on August 20, the day after that meeting, upon arriving at work,
Mazzei asked him to enter the garage, and then asked him what happened at the meeting “can I
trust you about what happened at the meeting?” Hagelmann answered “yes.” Mazzei then
asked “what was going on at the meeting.” Hagelmann replied that they spoke about “union
business and stuff”. Hagelmann said that “the Uno would be here eventually” and he quoted
Mazzei as saying “I don’t want to have the Union here because we don’t need to have a union
here right now.” Hagelmann disagreed, saying a union was needed for health benefits and
would be good for the workers. Hagelmann described the conversation, which lasted about 30
minutes, as “heated.”
Hagelmann also stated that Mazzei told him at that time that “maybe “J.J.” [James
Jenkins, a driver from Long Island] might have been at the Chinese restaurant because he had
people looking out.” Hagelmann quoted Mazzei as saying that he “didn’t want people going to
the Chinese restaurant and go to the meeting” and that “J.J. and Cowboy [Timothy Kellison]
were looking out for people.” At hearing, Hagelmann stated that he did not see either man at the
Union meeting. Mazzei denied asking Kellison or Jenkins to attend any Union meeting.
Hand-written time card records for Jenkins shows that he worked on Long Island from
6:00 a.m. to 6:30 p.m. on August 19 and was paid for 10 hours.
Wolven testified that following the August 19 Union meeting, certain employees
“voluntarily” went into Mazzei’s office, entering without Mazzei’s calling them in, and spoke with
him about the Union meeting during which she was present.
She stated Mazzei “initiated” conversations with employees Frees and Rink, asking them
“what happened at the meeting.” They told him what was said at the meeting and that Ebert
promised more money and other benefits that they were already receiving, but would not
guarantee anything or put anything in writing. Mazzei responded that “they couldn’t get anymore
than what they’ve got already; and they would lose everything if they got the union in.” 8
Wolven also stated that shortly after the August 19 meeting, Veronica Anglero and Chris
Rudy “came in to tell us what happened at the meeting.” Mazzei asked who was there and they
mentioned a few names. Further, Wolven stated that Richard Berlly “came in and began
discussing what was said at the meeting, including that the Union was offering more money and
benefits that the employees were already receiving. Mazzei replied that they weren’t going to
get any more money and they were already getting everything the Union was offering.
Mazzei testified that employees Frees, Rink, and Azar came to him after the meeting
and asked whether Ebert’s statement that he wrote the employee handbook was true. Mazzei
denied asking any questions whether they signed cards for the Union or attended Union
meetings, and further denied that he asked any workers who attended the Union meetings.

8 This threat was not alleged in the complaint. A finding of a violation as to the threat would
be cumulative of the other 8(a)(1) violations I will find herein.
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5. The Discharge of Penny Kuhhorn
Penny Kuhhorn began work for the Employer as a driver in early July, 2008. She has
been employed as a bus driver for 20 years.
As set forth above, in mid August, 2008, Pomella distributed flyers and cards with her
monitor, attended a Union meeting and signed a card for the Union. She told Mazzei that she
intended to distribute material for the Union and was told that she could not do so on company
property. Mazzei conceded seeing Kuhhorn handing out Union literature.
The “Dry Run” Procedure
According to the employee handbook, all drivers are required to perform a “dry run” of
their assigned route prior to the start of the school term. The purpose of the dry run is to ensure
that the driver is familiar with the route prior to the first day of school. The driver plan the run on
a map provided by the dispatcher and must verify the pick-up and drop-off points at the school
and at the children’s’ homes. The handbook provides that at least three days prior to the first
day of school, the driver must give the dispatcher left and right sheets detailing all the turns the
driver makes with approximate pick up and drop off times for each route the driver is assigned.
The driver must meet every parent during the dry run.
Kuhhorn stated that on Wednesday, August 20, 2008, she was asked to do a “dry run.
All the drivers were asked to do a dry run on August 21 or August 22. On August 21, Kuhhorn
and her monitor did a dry run for all three of their routes. Kuhhorn stated that they returned to
the terminal after doing the dry run and her monitor submitted a list of the runs. She was told
that Wolven said that the Employer wanted only the left-right sheets. Kuhhorn rewrote the
papers and submitted it.
Kuhhorn was not scheduled to work on Thursday or Friday, August 21 or 22, or the
following Monday and Tuesday, August 25 and 26, and had no communication with the
Employer during that period of time. On Wednesday, August 27, Kuhhorn came to work and
attended a mandatory training session. She was accompanied by her grandson for whom she
was babysitting. Mazzei told her that her run was too long. The Respondent’s contract with
Orange County requires that a child be on the bus no longer than 75 minutes. Apparently,
Kuhhorn’s run took longer than that to complete. Mazzei also said that he wanted her to travel
via Interstate Route 84 rather than on the “back way,” local or smaller roads. He asked her to do
the route again. Kuhhorn protested that her route was actually shorter but Mazzei insisted that
she do the run as he suggested. Kuhhorn said that she would re-drive the route but could not do
so that day because her grandson was with her. Inasmuch as non-employees are not permitted
in the bus for liability purposes, she could not do the run in the bus with the child. She told
Mazzei that she could re-do the dry run the next day, Thursday, August 28. Mazzei refused,
insisting that the run be done by 4:00 p.m. that day. Kuhhorn replied that she would try to have
her daughter leave work early to take her child, and if so, she would re-do the route that day.
Kuhhorn stated that she learned that her daughter could not leave work early, and she
called Mazzei with the news. Mazzei said that she would have to do the run in her own vehicle
that day since he needed the report by 4:00 p.m. Wolven agreed that Kuhhorn requested
permission to use her own vehicle, but said that Mazzei denied her request to use it. Wolven
testified that the first time that drivers were permitted to do dry runs in their personal vehicles
was one year after Kuhhorn was discharged, just prior to the summer, 2009 school session. On
those occasions Mazzei specifically authorized the use of personal vehicles because the drivers
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were not available on the days that were scheduled for the dry runs but offered to do them on
the weekend in their personal vehicles.
Mazzei testified that dry runs are supposed to be done in a company vehicle because
the driver was on company time and was paid for her time during which the Employer’s
insurance covers the driver. Further, the Employer can determine the route the bus took in the
event the driver needs help finding an address. Mazzei conceded that drivers asked to do the
dry run in their personal vehicle but he never authorized it and he is not aware that any dry runs
took place in a private vehicle.
Kuhhorn testified that she re-drove the route with her grandson that day, Wednesday,
August 27. She returned to the terminal at 3:50 p.m. after Mazzei had left for the day, and gave
the report to Wolven, advising her that if there were any problems with the report, she should
call her early the next morning as she was going away for the Labor Day holiday. Wolven
denied that Kuhhorn re-did the dry run that day.
Kuhhorn was not called the next morning and left for vacation at noon. She was not
scheduled to work that day, August 28 through September 1, and she returned home on
September 2, Labor Day. Upon arriving home, she found several messages on her voice mail.
The first was on August 28, advising her that she should call because she had to re-do the run.
Another message, on Friday, August 29, related that Kuhhorn was to report to the facility that
day to re-do the run. It should be noted that Wolven stated that she made that call because
Kuhhorn had not re-done the dry run. Finally Kuhhorn received another message that she
should report to work on the first day of school, September 3, at 6:00 a.m.
Kuhhorn reported to work on September 3, and was told by Mazzei that she was
suspended for not following company policy. Kuhhorn asked what policy he was referring to.
Mazzei replied that the handbook requires that she do a dry run with her monitor. Kuhhorn
protested that no one told her that. In fact, the handbook does not mention that requirement.
An employee status report on September 3 states that Kuhhorn was suspended
because “driver refused to re-do dry runs. Wouldn’t return phone calls.” Another employee
status report dated September 5 states that “she refused to do dry runs when told. She refused
to return phone calls and follow orders. She refused to follow dry run procedures.” On
September 5, Mazzei told her she was fired. Both reports were prepared and signed by Wolven.
It must be noted that Kuhhorn was not the only driver asked to re-do her dry run. Others were
asked at that time and did so. Wolven testified that Kuhhorn did not do the second dry run as
requested by the time the school term began.
Wolven testified that on the day of Kuhhorn’s termination, Mazzei told her that Kuhhorn
“was a big union supporter and that this … her refusal to do a dry run would get rid of her.”
Mazzei denied speaking with Wolven concerning Kuhhorn’s alleged Union activity, nor did he
express his satisfaction that he would be able to fire Kuhhorn.
Dispatcher Cuddy testified that company policy requires that a dry run be done in a
company vehicle. She conceded that on occasion, drivers asked to do the dry run in their
personal vehicle but she denied those requests because when they perform the dry run they are
on paid time and should be in a company vehicle, and if they use their personal vehicle the
Employer’s insurance liability may not cover them, and the Zonar GPS system would not be
able to track the route that they take.
Mazzei testified that the initial “mandatory” dry runs were scheduled for Thursday and
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Friday, and that after he received the drivers’ reports, he had a certain number of days to review
them and determine if they could be done via a shorter or more direct route which would be
safer. He also determines if the dry run was done within 75 minutes. After his review, he sends
the documents to Servisair for its approval.
Mazzei stated that he reviewed the drivers’’ reports of their initial dry runs. At least 12
runs had to be re-done because the run exceeded 75 minutes or used secondary roads instead
of main roads. He testified that he immediately called the drivers who had to re-do their dry runs
and that most did them the following Monday through Wednesday, August 25 through 27.
Mazzei testified that he asked Kuhhorn to do a second dry run because her first run was
too lengthy in that the first child picked up would have been on the bus more than 75 minutes,
and because she used secondary roads instead of a highway which would have reduced the
time for the run. Mazzei told her at about the time of the August 27 class that she had to re-do
the run for the reasons indicated. According to Mazzei, Kuhhorn was “absolutely refusing” to do
the second dry run, telling him “if you want it done, do it yourself” and walked out. Mazzei noted
that Kuhhorn was not fired that day because he did not have a chance to discipline her, but
instead he gave her additional time to re-do the run.
Mazzei testified that he was told by Wolven and Poisella that they both told Kuhhorn by
phone that she had to the dry run again, and that Poisella gave her a deadline to complete it,
Friday, August 29 at noon. Mazzei believed that Kuhhorn was home between August 27 and
September 2 because he was told by Wolven that she spoke to her, but Wolven denied
speaking to Kuhhorn. According to Mazzei, Kuhhorn told Wolven that she was not coming to
work and that if Mazzei wanted the dry run made, he should give her written directions and she
would follow those directions. Mazzei immediately informed Poisella of this development, who,
according to Mazzei, gave Kuhhorn a deadline to do the dry run. Poisella denied giving Kuhhorn
a deadline.
Mazzei stated that Kuhhorn never did the second dry run that reflected the changes in
route and time that he asked her to make, and she was terminated for insubordination. The
regular run was made on the first school day with the left-right sheets originally prepared by
Kuhhorn although Mazzei had changed the start of the route and had gone over the new route
with the monitor. Mazzei stated that the substitute driver and three children were lost on the bus
for more than one hour in the morning run.
Human resources director Poisella stated that Mazzei brought to his attention Kuhhorn’s
failure to submit left-right sheets for her route. He identified Kuhhorn’s misconduct as a failure to
submit those sheets in a timely manner, and that she had more than one opportunity to do so
but seemed to “disregard” the order given to her. Poisella stated that Mazzei advised him that
he “reached out” to Kuhhorn unsuccessfully. Poisella denied that he gave her a deadline to
complete the dry run. He stated that he told Mazzei to give her a noon deadline to complete the
sheets, but Poisella did not himself give Kuhhorn a deadline as Mazzei testified. Poisella further
stated that another driver initially failed to submit the sheets but met the noon deadline imposed
by Mazzei.
Poisella testified that he approved or made the decision to fire Kuhhorn for
insubordination since she did not obey the order to turn in the left-right sheets for the corrected
run. Poisella later testified that he decided to terminate Kuhhorn for refusing to do a corrected
dry run. He was told by Mazzei that her left-right sheets were “inadequate.” Poisella did not
review those sheets. He further stated that he had no knowledge that Kuhhorn had engaged in
any activities in behalf of the Union, however Mazzei stated that he informed Poisella about the
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incident in which he warned Kuhhorn that she could not block the facility’s entrance when she
was distributing Union flyers.
6. The Events of September
Union meetings were held on September 11 and 25. By the time of those meetings,
Kuhhorn and Mieses had been discharged, so Ebert asked Catherine Pomella to distribute
flyers advertising the meetings.
Thirty to thirty-five employees were present at the September 11 meeting. Ebert
repeated the same message he gave at the August 19 meeting, and said that the most
important task was to continue to gather signed authorization cards. He distributed cards to
those who were not at the first meeting or had not signed cards already, and asked them to sign
them. A number of cards were signed at that meeting which were collected by him and Pomella.
Richard Azar, who was employed as a driver with the Employer since July, 2008 and
was still employed at the time of the hearing, testified that he attended a Union meeting on a
Thursday in September, 2008, and signed a card dated September 4.
Azar testified that on the day following the meeting, he was called into Mazzei’s office,
and questioned about the meeting. He was asked “if there were people there, how many people
were there and how many voted or how many didn’t vote.” Azar did not answer the questions
because he did not know the answers. Mazzei testified that Azar “stopped by my office” and told
him that he attended a union meeting only for the food. He denied asking Azar any questions
about the meeting.
On September 16 Ebert wrote to the Employer’s attorney advising him that the Union
represents “an overwhelming majority of [the Employer’s] employees in a unit appropriate for
collective bargaining.” He asked for voluntary recognition and also requested a meeting with him
as soon as possible, and offered to have the Union’s majority status verified by an independent
third party.
At hearing, Ebert was shown the cards and identified them as the cards that were signed
and collected at the Union’s meetings on August 19 and September 11, and also solicited and
obtained by employees Pomella and Christopher Hagelmann to whom he gave blank cards.
Ebert did not recall which specific cards were obtained by those two workers.
On September 23, the Employer’s human resources director Poisella issued a memo to
all employees stating that the Union claimed to represent a majority of the workers and
requested recognition but Acme declined the request and asked the Union to have the Board
conduct an election. The letter further stated that “we respect your right to make your own
informed decision about representation. However, we believe that when you have reviewed all
of the facts, you will conclude that at this time, the presence of outsiders would not benefit our
relationship.”
Pomella stated that on the day after she received that memo Mazzei asked to speak to
her before she began her run. They spoke in dispatcher Cuddy’s presence in the office where
Mazzei closed the glass window and held his hand over it so no one could open it. Pomella
testified that Mazzei told her that “he did not want me to talk to any of my co-workers; that he did
not want me going up to anyone’s bus to talk to me – for me to talk to them; he didn’t want
anyone to come to my bus to talk to me; he didn’t want me to talk to anybody in the company
parking lot; and he didn’t want me conducting any business on company property.”
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Pomella stated that at the end of that day, Mazzei again called her into her office. She
asked for a witness. Mazzei refused because she was “not Union and are not allowed,” saying
that she should not leave, and if she did she would be considered insubordinate and could be
suspended. She went into an office where Wolven was present. Mazzei told her that their talk
was “not personal” since he was doing a “route audit” for all employees and since he was going
in order and hers was route 2, she was being spoken to first. Mazzei asked her some questions
about her claim for time for which she was allegedly ineligible. Pomella gave an explanation and
told Wolven that she had approved her time sheet. Pomella announced that she believed that
she was being questioned because of her union activity and Mazzei denied it. Mazzei testified
that he did 30 other route audits and that Pomella corrected the small “discrepancy.”
7. The Exchange Between Mazzei and Tammy Bartula
Bartula worked at First Student before being hired at Acme, where she is employed as a
driver. She spoke with Employer officials Mazzei and Mattingly about the Union. Apparently they
confided in her. She was asked in June, 2008 for the seniority list used at First Student, Mazzei
showed her the applications of employees, and asked her to encourage her former co-workers
to apply for jobs with the Employer. She stated that both men knew of her role in the Union as
early as June, 2008 when hiring began.
Bartula stated that in June, 2008, she was “very open” with Mazzei, advising him that
she “ran” the Union campaign at First Student, had become an organizer and was “very
involved.” She stated that Mazzei was aware that she worked with Union agent Garlinghouse on
the preparation of the seniority list, and that he confided in her that he “did not mind working
with a union.” Bartula attended the first Union meeting on August 19 where she signed an
authorization card. She went to two more meetings, in August and September.
Bartula stated that in September, 2008, Mazzei’s attitude toward her changed. He called
her in to complain that a driver who had substituted for her got lost on a run. When Bartula
protested that that was not her fault, Mazzei agreed. About one week later, Mazzei criticized her
for making an unauthorized stop. She apologized, saying that she stopped on her way home to
pick up medication for her sick son, but said that other drivers did the same thing. Mazzei
refused to discuss other drivers with her. At the same time, Mazzei threatened that she would
lose her home bus privilege, adding that “you are not the person you were when you were
hired.” Nevertheless, her home bus privilege was not removed at that time.
A driver is permitted to keep the bus at her home if the driver and monitor live near each
other in relation to the first stop they have to make. Bartula conceded that the Respondent’s
rules concerning the use of a home bus changed. Further, when the buses were house in the
crowded, temporary facility, the Employer wanted more buses to remain overnight at the drivers’
homes. That situation changed when the permanent facility was obtained.
Bartula stated that on October 3, she and her monitor Agnes Smith complained vocally
to the dispatcher that their paychecks were not yet available, with Smith threatening to call the
“Labor Board.” In fact, all the employees’ paychecks were not available. Mazzei, who was not
there at the time, called them later when they were on a run and said that he would not keep the
office open just for them to get their checks. Bartula told him that he could not legally keep their
checks. Mazzei told them to see him when they returned from that run.
When they returned, Mazzei told Bartula that he would begin doing “audits” and was
considering removing her home bus privilege. Bartula protested, saying that whatever action
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was taken with respect to her must be applied to everyone, referring to others who had home
bus privileges that should be removed. Mazzei asked her to see him on the next workday.
Bartula stated that a couple of days later Mazzei examined the issue and told her that he would
not take a run away from her or reduce her hours and that she could keep her home bus
privilege.
Bartula told Mazzei that she believed that she was being picked on or singled out
because of the protest that she and Smith made about the paychecks not being ready on time.
Mazzei denied picking on her, but asked if she had a problem with him. Bartula denied having a
problem with him but said that she wished that they had the same “fantastic” working
relationship as they had when she was hired, when he told her that she was one of the best
workers he had. Bartula asked what he meant and he said “I wasn’t the person I was when I
was hired.” Bartula believed that Mazzei incorrectly blamed her for comments Smith may have
made.
At about the same time Mazzei told her that her bus had to be brought to the shop
immediately because of “electrical problems.” Bartula denied that the bus had any such
problems. Mazzei told her to take her bus to the shop and get another bus. Later, she learned
that the Zonar GPS tracking device was not working on her bus.
Bartula stated that in October, Mazzei told her that she could no longer park out,
whereby the driver and monitor are permitted to remain with the bus and park in an authorized
location between runs rather than returning to the facility. The standard applied is how much
time there was between runs. According to Bartula, if there was less than 45 minutes between
runs the bus could remain off premises during which time the driver and monitor could have
lunch. But if there were more than 60 minutes between runs, the bus had to be returned to the
facility. Bartula stated that, at that time Mazzei criticized her for allegedly not returning to the
yard between runs, the Respondent’s standard for parking out had changed and that the “vast
majority” of drivers were subject to that change.
Mazzei stated that the time between Bartula’s runs changed. At first there was only 25 to
30 minutes between runs and she was therefore permitted to park out. Thereafter, she had
more than one hour between runs and was required to return to the facility. Mazzei stated that
he told her that she could no longer park out. He noted that, at that time, other employees were
losing their park out privileges, some on a daily basis, because of changes in the runs. For
example, the Employer experienced a loss in the number of children being transported – from
578 to 400, and then to 360. Thus, with fewer children the runs were less concentrated.
However, Mazzei’s reason for removing her park out privilege was that she had used her bus to
go shopping for about one hour to one and three-quarter hours. When he confronted Bartula,
she said that he was visiting her father in the hospital. Mazzei showed her the Zonar report, and
she admitted that she was purchasing food at a shopping center. Previously, Bartula signed a
home vehicle guideline form which stated that “no unauthorized use of vehicles is permitted.
Unauthorized use is cause for loss of home vehicle privileges….”
Bartula stated that, again in October, she was called into Mazzei’s office who said that
two employees said that she harassed or threatened them. Bartula denied doing so. Bartula
knew that Linda Frees and her monitor Emily Rink made the complaint against her. Mazzei
asked her to write a statement about the incident and Bartula did so. Later, Mazzei told her that
the complainants were satisfied with her explanation of the incident and they had withdrawn
their complaint. Bartula asked why it took so long for the allegation to be made and Mazzei
replied that he had to watch her “actions.”
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Bartula stated that many of their conversations ended with his saying that she was not
the person she was when she was hired, and included comments such as she was a “horrible”
worker and did a “terrible job.”
8. Further Union Organizing
The Union’s Handbilling
Ebert stated that on October 7, he distributed handbills publicizing the October 9
meeting. He handbilled at about 2:00 p.m. for nearly three hours at the back of the property on
Mulberry Street at the entrance and exit to the Respondent’s property. Ebert stated that the
parking lot was being paved and the buses were using the Mulberry Street entrance and exit.
He testified that at all times during his handbilling he stood on the sidewalk, and denied stepping
off the sidewalk onto the Respondent’s property.
Ebert stood at the entrance of the property and handbilled about 30 entering buses
during approximately one hour. After a period of time, the drivers and monitors entered their
personal vehicles and left the premises. Ebert then stood at the exit of the property and offered
handbills to the drivers of those vehicles as they left the premises. He stated that a majority of
drivers did not take a flyer, while only about five accepted one.
Ebert stated that within five minutes of his handbilling the entering buses, he saw Mazzei
staring at him from a distance of 15 to 20 feet. Ebert shook his finger at Mazzei, telling him that
he was illegally surveilling him. Although he did not know Mazzei at the time, he believed that he
was a company official since he stood in an “authoritative way” with his arms crossed. Ebert
denied that Mazzei asked him to leave the property, but said that he was trespassing. Ebert
accused him of surveilling his activities, claimed that he was legally “three feet in from the road”
and asked Mazzei to leave the area. Mazzei remained watching Ebert for 20 minutes during
which time the police arrived. Four or five employees were nearby. An officer told Ebert to
remain on the sidewalk and not enter the driveway which was Acme’s property. Ebert continued
to handbill and Mazzei left. Ebert denied blocking any vehicles from entering or leaving the
facility.
Mazzei testified that he saw Ebert walk from the sidewalk up the driveway and
introduced himself to Mazzei and gave him a flyer. Mazzei told him that he was not permitted on
company property and Ebert became “argumentative,” claiming that he had a right to be present
100 feet within the company property. Mazzei told him several times to leave. Mazzei called the
police and asked to have him removed. Ebert then moved to the sidewalk before the police
arrived. Mazzei told the police that he was trespassing. Ebert told the police that he did not
enter the Employer’s property. The officer told Ebert to stay off company property.
Wendy Amundson, a monitor, testified about this confrontation. She stated that she saw
a Union agent on company property when she entered the facility on a bus at the end of the
day. The agent had some papers in his hands. She walked from the bus to her vehicle and saw
the agent walk up the driveway and stop at the garage fence. Mazzei asked if he could help
him. The representative said that he was from the Union and Mazzei told him that he had to
leave the property and could not stay there. The Union agent replied that he had a right to
speak to the employees. Mazzei responded that he understood that but he was on private
property and could speak to them off the premises. As Amundson was leaving the premises,
Mazzei again asked him to leave the property and the Union agent said that he had a right to
speak to the workers. At that time, Mazzei’s phone rang and the Union agent walked away. She
heard the agent yell at Mazzei to call the police and walked back toward Mazzei, poking his
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finger at Mazzei’s chest. She heard Mazzei tell the agent that he had to go to the end of the
driveway.
Ebert held further Union meetings on October 9 and 25 which were publicized by
handbills. Ebert stated that Pomella and Hagelmann refused to distribute them, saying that they
were afraid to do so. He stated that “I distributed handbills. I couldn’t get anyone to distribute
handbills on the property, so I was forced to do it myself.”
About 30 to 40 employees attended the October 9 Union meeting. Ebert handbilled
again on October 15, distributing flyers for the October 22 meeting. He stood at the entrance on
Mulberry Street and saw Mazzei drive his vehicle into the entrance and park it, partially blocking
the entrance. Employee Pomella stated that she observed an Employer’s SUV blocking the
entrance when Ebert was handbilling on the sidewalk. According to Ebert, Mazzei exited the car
and began yelling at Ebert to “get off the property. You have no right to be here. You’re
trespassing. What are you doing here?” Ebert replied that he was illegally surveilling him. At
hearing, Ebert stated that he stood on the sidewalk and did not enter the Employer’s property or
block any vehicle from entering or exiting. Employee Haskell stated that she saw Ebert on the
sidewalk and not on the Employer’s property.
Mazzei moved his vehicle, and they spoke back and forth for nearly one hour until 3:00
p.m. during which time Ebert attempted to give flyers to about 25 buses, but only 3 accepted
them. The police came and told Ebert to stay on the sidewalk and not enter the property. About
30 employees watched the two men talk and were present when the police arrived. After the
buses arrived, Ebert moved to the exit of the building and left at about 4:45 p.m.
Mazzei’s version of the incident is that upon driving into the lot he saw Ebert on the
property attempting to distribute flyers. Mazzei got out of his car and asked him to get off the
property. Ebert said that he was permitted to be 100 feet inside the Employer’s property. Mazzei
asked him to leave and asked Jonathan Hernandez, the Respondent’s maintenance worker to
do the same while he called the police. When the police arrived, Ebert was standing on the
sidewalk.
Hernandez testified that in the late summer or early fall of 2008, he saw Ebert
distributing flyers on the Respondent’s property. Mazzei asked him to request Ebert to leave the
property. Hernandez approached Ebert and observed that he was “disrupting the buses” and
asked him to get off the property or the police would be called. Ebert then moved to the
sidewalk. When the police arrived, Ebert was on the sidewalk.
Wolven testified that on the occasions she saw Ebert and Garlinghouse, they were
always on the Mulberry Street sidewalk and not on the Respondent’s property.
D. The Discharges of Catherine Pomella and Eileen Haskell
Pomella, a driver and Haskell, her monitor, began work with the Employer in June, 2008.
Pomella signed a Union card on August 15, 2008, and was given blank cards by Ebert that
month as she stood on the Mulberry Street sidewalk speaking to Ebert, as set forth above.
Pomella stated that she told manager Bob Calli at that time, with Haskell and Mieses present,
that Ebert gave her Union cards and he asked that they request permission before they
distributed them. Calli asked to see a card and Pomella gave him one which he read. Calli said
that he was familiar with Teamsters 445. Mazzei approached them and asked Pomella what she
was doing. Pomella replied that she was requesting permission to distribute the Union cards.
Mazzei replied that she could not do so on company property. Pomella apologized. Calli gave
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Mazzei the Union card, and Mazzei took the card and left the area. Haskell corroborated
Pomella’s testimony concerning Mazzei’s comments. Mazzei denied speaking to Calli, who was
an assistant terminal manager for about two weeks, regarding employees distributing Union
literature.
Haskell testified that she signed a Union card in August, 2008, and that Ebert gave
Pomella blank cards which she gave to Haskell. Haskell kept the cards in her pocketbook. They
both solicited employees by standing in front of the garage where buses entered and left and
offered cards to the drivers.
Mazzei testified that in late September or early October, 2009, two employees told him
that Pomella was blocking buses from entering the facility. He spoke to Pomella twice that day
about that matter. The first time Haskell was about 50 feet away and the buses were entering
the facility. He did not see Haskell holding any flyers and he did not speak to her. Later that
same day, he told Pomella that she was not permitted to block egress of the buses. Mazzei
conceded that he did not see Pomella blocking any buses but only saw her blocking the
entrance. He asked her what she was doing and Pomella replied that she was distributing
literature for the Union. Mazzei responded that she could not do that on company time. Mazzei
stated that she asked if she could handbill the employees where they parked their cars as they
were leaving work. Mazzei agreed as long as she was not on paid time. He did not issue a
written warning because Pomella immediately complied with his order not to block the buses.
Pomella testified that she distributed about 20 Union cards with Haskell’s help, while
Haskell stated that they both handed out about 40. Pomella stated that employees returned
signed and dated cards to her. She held them until she accumulated a number of them and
gave them to Ebert at a September Union meeting. She recalled receiving signed cards from 21
workers. Her technique was to approach her co-workers and ask if they wanted to join the Union
as more than 50% were needed to enable the Union to represent them. She said nothing to
them concerning trying to obtain an election. She also received some cards from employee
Hagelmann in early September.
Pomella also distributed flyers advertising the September 11 and the October Union
meetings. She further stated that form October, 2008 to March, 2009 she was asked a number
of questions by employees, and was in constant contact with Ebert in referring the questions to
him, obtaining answers and then advising the workers of his response. She spoke with her co-
workers about the Union in the company parking lot or during park-outs.
On February 18, 2009, Pomella and Haskell had picked up all seven children on their
bus at their homes and drove them to the Inspire School. As Haskell began to unbuckle the
seatbelt of Linda,9 a three year old, the child apparently saw something and “lurched forward”
falling to the floor. According to Haskell she landed with her hands on the floor and her head on
top of her hands. Haskell did not see whether her head hit the floor. Haskell immediately told
Pomella that Linda fell, but she was okay. Pomella asked to see the child and Haskell brought
her to the driver who examined her, observed that she was not crying and had no bruises and
was not bloody. Pomella told the teacher’s aide who met the bus that Linda fell but seemed all
right, adding that if there was a problem the school should call Acme because a report must be
made. No report of the incident was made to the dispatcher at that time.
Pomella and Haskell then left, and took their after-run break. After the break, Pomella

9 I have not included the last name of the child.
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reported that they were beginning the mid-day run and was told to return to the office at the
conclusion of that run. Pomella saw Lawrence Iannucci, the Respondent’s safety supervisor at
the Inspire School when they were at the school during their mid-day run.
Dispatcher Cuddy testified that VMC’s representative Chuck Ganim called her, saying
that Linda’s school called him and informed him that Linda fell in the bus. Gannon asked if she
was aware of the accident. Cuddy said she was not know about the incident but would find out.
She then radioed Pomella to return to the terminal. Linda’s mother called advising Cuddy that
Linda had a lump on her head and was crying, and that she was bringing her to the terminal to
show her injuries.
At the terminal, Cuddy asked Pomella and Haskell whether anything happened to Linda
that morning. Pomella replied that Linda fell and she checked her for bruises. Cuddy asked
them to complete incident reports. When Linda and her mother arrived, Pomella noticed a small
discoloration on Linda’s forehead, and Haskell saw a lump on her head, and Wolven noticed a
bruise on her head and scratches near her eye.
Wolven said that Mazzei came to the terminal and was advised that a child was injured
on the Pomella-Haskell bus and the incident was not reported. Mazzei replied “Good, that was
something to get rid of her with.” He then called the human resources department. Mazzei
denied expressing any satisfaction to Wolven that he would be able to fire Pomella and Haskell.
At the end of the day, Pomella and Haskell prepared and turned in incident reports. They
were suspended. That day, February 18, VMC agent Ganim wrote to Mazzei advising that VMC
recommends that Pomella and Haskell “be suspended from driving and attending for a period
of 1 to 3 days (your discretion) and that they also be permanently reassigned” from the run they
were on to another run. Ganim added that “this is due to a breach in policy of not reporting an
incident on a company vehicle in a timely fashion.” The memo concluded that the
recommendation is “pending receipt of the nurse’s report tomorrow. If there are any changes to
this recommendation, I will let you know.”
Mazzei testified that when he spoke to Pomella about the incident she apologized and
said that she “dropped the ball by not reporting” it, but she also said that she had “medically
evaluated and examined” the child.
Wolven testified that there was no discussion between her and Mazzei about whether
Pomella and Haskell should be reassigned pursuant to the VMC memo as opposed to being
terminated. Wolven stated that Mazzei “was never going to reassign them. He wanted them
terminated. He said that he was not going to put them on another run; he wanted them out.”
Wolven testified that she discussed with Mazzei “quite a few times” before Pomella and Haskell
were discharged that “they were the biggest Union supporters; how they were going around
talking to people about the Union; about how Catherine wanted to be the shop stewardess; and
just that we had to get rid of them.”
On March 11, Pomella and Haskell were terminated for “failure to follow company
procedure – failure to report a child getting hurt on the bus.”
Haskell stated that when she was suspended, she asked Mazzei for permission to
remove certain personal items from the bus, including a pocketbook, notebook, clipboard, scarf,
and tape recorder. Haskell and Wolven stated that Mazzei refused permission, Wolven adding
that Mazzei told Haskell that “she was suspended, she had to leave the grounds.” Mazzei
denied that Haskell asked to return to the bus and denied refusing permission to do so, adding
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that she did not have to ask his permission since the bus was open and she could have
retrieved her items on her way out of the terminal.
Jonathan Hernandez a maintenance worker, testified that he found the tape recorder
hidden in the console of the bus two or three weeks after Haskell’s suspension. He gave the
tape recorder to Mazzei who confirmed that Hernandez gave him the recorder. He did not know
who it belonged to because the bus had been used by other drivers and monitors following the
suspensions. However, after he listened to it he realized that it belonged to Pomella or Haskell.
He denied seeing a notebook.
However Wolven, the assistant terminal manager, testified that after Mazzei refused
permission to Haskell to retrieve her items because she was “suspended and had to leave”
Mazzei “ran out to the bus to see what was in it” and returned with a bag containing a notebook
and tape recorder. Wolven stated that she and Mazzei listened to the recording.10 Some time
after Haskell was terminated she again requested the items but only the pocketbook was
returned. Thereafter, the tape recorder was returned to Haskell, and at the hearing, the tape that
was inside the recorder was returned. Mazzei testified that since his voice had been taped he
believed that the tape was company property, justifying his refusal to return it to Haskell. Wolven
stated that Haskell’s notebook contained names and phone numbers of employees, including a
“list of complaints” employees had against the Employer. She gave the notebook to Mazzei
who said he would call Ed Lynch, the vice president of operations.
Pomella stated that she was told to radio the dispatcher at the start and conclusion of
each run; that the bus was clear of sleeping children, if the driver is running more than 10
minutes late, if there are mechanical problems, vehicle accidents and when children do not
appear for pick up. She did not recall being told that an injury to a child on the bus must be
reported immediately.
Pomella stated that she attended two training-refresher courses, one was on August 19,
2008 and the other on February 13, 2009. She stated that no one at the August 19 session,
neither Nellie Mendoza, from Orange County, or the Employer representatives spoke about the
importance of reporting all incidents to the dispatcher. In contrast, Mazzei testified that Mendoza
spoke extensively about the driver’s obligation to call in incidents by radio or cell phone. He
quoted her as saying that “anything out of the ordinary must be reported via radio immediately
to dispatch….” Pomella and Haskell denied seeing the memo requiring the immediate reporting
to dispatch of an incident on the bus no matter how small the incident is, stating that they were
not employed that week as the school they serviced was closed that week.
Pomella added, broadly, that at no meeting she attended was that subject discussed or
even mentioned. However, she noted that at a January, 2009 meeting Mazzei mentioned an
incident in which a child was released to an unauthorized person and the police were called.
The drivers were told to call the dispatcher if they were not certain of the person receiving the
child. Pomella stated that that was the first time she was told that incidents had to be called into
the dispatcher. Wolven testified that at that meeting, the drivers were told to report all incidents
and “all things that are a little out of the ordinary to dispatch immediately.”
Pomella recalled that in December, 2008, a child had a bloody nose on her bus. It was
not reported to the dispatcher, and at the end of the day, the monitor reported it and filled out an

10 Pomella had recorded a conversation she had with Mazzei in which he counseled her for
an infraction.
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incident report. Haskell testified that she was never instructed concerning the procedure to be
used if a child fell on her bus.
Human resources director Poisella testified that he recommended that Pomella and
Haskell be suspended immediately pending an investigation. He received the appropriate
documentation including incident reports and records sent by VMC. He decided to terminate
Pomella and Haskell based on his conversations with Mazzei and his assistant and after
reviewing the incident and the accompanying paperwork. In reaching the decision to fire them a
factor he considered was the significance of the injury to the child.
Mazzei denied participating in the decision to discharge Pomella or Haskell. Poisella
stated that when he made the decision to discharge the two women he was aware of the
recommendation of VMC that they be permanently reassigned to another run. However, he
decided not to follow that recommendation because the Employer holds itself to a “higher
standard” because there is “no room for falling outside boundaries of following procedure
regarding a head injury” especially to a pre-kindergarten age child. Therefore notification is
extremely important. Poisella informed Mazzei of his decision
Wolven testified that the terminal manager had to have the approval of the human
resources department before an employee could be terminated. She stated that prior to an
employee’s termination she faxed only the warning notices to that department and not the
employee status reports, which were sent after the worker was fired. She noted that Mazzei
spoke to the human resources department before any decisions were made, and that the
department relied on the memos that were faxed to it.
E. The Alleged Impression of Surveillance at Quick Chek
Driver Eugene Blanton testified that he attended a Union meeting on August 19, 2008,
and signed a card there.
On March 2, 2009, Blanton submitted a letter of resignation which would be effective on
March 13. On March 12, 2009, his normal routine was to take a break between his morning and
mid day break at a Quick Chek convenience store where he parked out and notified the
dispatch office at about 12:05 p.m. of his location, as was required, and that there were no
sleeping children on the bus.
He parked the bus at that location and noticed Catherine Pomella getting into her car.
She hailed Blanton and they spoke. Pomella told Blanton that she had been discharged two
days earlier. Blanton stated that he, his monitor Donna Larli and Pomella went inside the store,
sat down and spoke for about 15 to 20 minutes. They both used the rest room and left the store.
Blanton stated that as he walked toward his bus, and Pomella walked toward her car, he
noticed Wolven’s car, a black SUV, approach and saw Mazzei pointing a camera at him,
Pomella and Larli. The car passed in front of the bus and Pomella’s car. Pomella quoted Mazzei
as saying “don’t mind me. I’m just taking some pictures.”
Blanton said that he did not plan to meet Pomella at the Quick Chek store, adding that
no one could have known that he was meeting her there because it was not a prearranged
meeting. When he completed his route, Blanton was asked to report to Mazzei with Larli.
Mazzei did not speak about the incident earlier in the day, but instead asked Blanton if he still
wanted to resign, which Blanton interpreted as Mazzei’s attempt to persuade Blanton to remain
an employee of the company. Blanton declined the offer. Mazzei testified that he told Blanton
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that he should have let the dispatcher know where he was and that he did not call in, although
Mazzei conceded that Blanton often used the Quick Chek to park out.
Dispatcher Cuddy stated that the Employer had a practice of investigating park-outs. If
the driver was called while she was on her park out, and the driver did not respond, a company
employee would drive to the location of the bus and look into the matter. Cuddy stated that she
was asked where Blanton was and she did not know. She checked Zonar and located the
vehicle. She said that Blanton did not call her to report the location of his park out which was the
required procedure. She called Blanton on his radio and cell phone but received no response.
Mazzei went with maintenance employee Jonathan Hernandez to the location of the bus.
Hernandez testified that he was asked by Mazzei to drive him to a location where Zonar
indicated a bus was parked, but the whereabouts of the driver was unknown. Hernandez drove
his personal vehicle. Upon arriving at the Quick Chek location, no employees were present and
the bus seemed abandoned. Mazzei entered the store and then waited 30 minutes. A car pulled
in and Blanton and Larli got out and walked toward the bus. Hernandez drove his car next to
them, but denied that Mazzei pointed his camera at them, stating that he only used the camera
when he first arrived at the location. Hernandez denied that Mazzei said anything to Pomella,
Blanton or Larli.
Mazzei testified that he was informed by Cuddy that Blanton’s bus was unattended. She
reported that she tried to contact Blanton but he did not respond by radio or cell phone, and she
believed that there was “something wrong.” Mazzei checked the Zonar report to see where the
bus was located and took the accident kit and his personal video camera because the company
camera was not in the accident kit. He asked Hernandez to drive him in the event he had to
drive the bus back to the terminal. Hernandez drove Mazzei in a car owned by Hernandez, a
white sports car. Mazzei saw the bus, got out of the car and tried to film the bus but his camera
did not work. He looked in the bus and in the convenience store and did not see the driver or his
monitor. He asked the store clerk if he gave permission to the driver to leave the bus in the lot.
Mazzei called Cuddy. Pomella then drove up and Pomella and the monitor exited the car.
Mazzei stated that he asked Blanton where he was and what happened, Blanton “put his
head down it looked like in disbelief that I was there.” They spoke briefly. Mazzei called Cuddy
and told her that everything was all right. Mazzei, who denied knowing that Pomella was
meeting with Blanton or his monitor, also denied saying anything to Pomella, instead asserting
that Pomella said that he had no right to be there. Mazzei testified that he has checked on other
buses prior to that time, either alone or with another company employee.
In contrast, Wolven testified that her car was used by Mazzei and Hernandez to locate
Blanton’s bus because it was new and would not be recognized by the workers, and that Mazzei
stated that Zonar showed that the bus was sitting idle, and that he was told that Blanton and his
monitor were meeting Pomella. Mazzei took his video camera, telling Wolven that he was “going
to get them on tape meeting.” Wolven stated that when he returned to the facility, he was
laughing, “saying he caught them all meeting, and how shocked they all looked when they seen
him. But he didn’t camcorder it because the battery was dead.”
Wolven testified that it was the dispatcher’s duty to monitor the buses using Zonar but
they never did. She called Mazzei’s explanation that he went with Hernandez so that he could
drive the bus back “an excuse.”
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F. The Anti-Union Petition
From June 3 to June 10, 2009, employees Linda Frees and Emily Rink asked
employees to sign a petition in opposition to the Union. It stated “No To the Union.” Sixty one
workers signed. On June 14, Frees and Rink sent the petition to human resources director
Poisella stating:
We hope that these letters and signatures stating that we do not
support the Teamsters Local 445 will help on July 28, 2009 in
court. Due to our work schedule, we were not able to see all
employees. We were only able to talk to about 60% of the
workers. Although we only have 60 signatures, there are
employees that do not support the union, but did not want to sign.
It is our pleasure to support and work for Acme Bus Corporation.
Frees testified that Rink typed the petition, and that they both solicited employees to sign
the petition on company property over a period of one or two days, and that they engaged in
that activity on their own. Their sole motivation was that they did not want the Union to represent
them. No Employer representative asked her to solicit signatures for the petition or helped her in
having it signed. However, she stated that she told Mazzei that they intended to solicit
signatures for the petition and asked if they would be disciplined for doing so. Mazzei replied
that they could do so as long as they were on their own time. She did not show the petition or
the accompanying letter to Mazzei.
Mazzei stated that Frees and Rink asked if they could solicit employees to sign the
petition. He said that they could do so as long as it did not interfere with the “work flow” and
neither they nor the employees they solicited were on company time.
Employee Christopher Weir stated that he attended a Union meeting and signed a card
for the Union there. He testified that on June 6, 2009, he was asked by Frees and Rink to sign
the petition, with Frees advising him that its purpose was to “protect Charlie [Mazzei] from
getting fired, and against the Union. Weir asked her if the Employer allowed him to sign it, and
she said that Mazzei gave his permission for Frees and Rink to “go around and ask people to
sign the petition.”
Weir stated that shortly after he signed the petition he went to the office to return his
keys for the day and saw Mazzei and asked him if he gave permission to circulate the petition.
Mazzei said he had, adding it’s “a stop petition against the Union and to protect me also.”
Mazzei then asked “what about your boys?” Weir asked “which boys?” and Mazzei said “your
boys.” Weir said he did not know. Mazzei asked him to “just talk to them ask them to sign it. I
give permission so they can sign it.” Weir stated that his “boys” referred to two friends who he
recommended for hire and who were hired. Weir did not ask his friends to sign the petition.
Mazzei denied speaking with Weir regarding the petition, nor did he discuss with Weir
any permission he might have given to Frees or Rink to distribute it.
Wolven stated that she saw an anti-union letter signed by Frees and Rink which was
dated January 29, 2009 on Mazzei’s e-mail and believed that it was sent to him by Poisella. She
saw it in April or May, 2009. Mazzei remarked to Wolven “they did a really nice job on this.”
Further, Wolven testified that employee Berlly wrote an anti-union letter which Mazzei directed
her to make copies of.
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G. The Discharges of Roberta Cheatham and Paula Mercado
Roberta Cheatham and Paula Mercado were employed as driver-monitor for the
Respondent. Cheatham began work in November, 2008 and Mercado in December.
Cheatham attended a Union meeting in January, 2009. Cheatham began work for the
Employer as a driver, and, in April, 2009, assumed responsibilities as a 19A Examiner. Section
19A refers to the New York State Vehicle and Traffic Law regulation regarding the requirements
for a school bus driver. A 19A examiner makes certain that the employer’s files contain
documentation proving that the drivers possess the necessary qualifications and training for the
position of school bus driver.
Cheatham had extensive experience as a 19A examiner with the Orange County
Association for the Help of Retarded Children. After becoming a 19A examiner she continued
driving for the Employer, and occasionally worked as a monitor.
Cheatham stated that when she became a 19A Examiner, it was her responsibility to
maintain the drivers’ records concerning certification and testing and ensure that those records
were contained in the files. She looked at her file and saw that it was certified that she took
certain tests, but in fact, she had not. She became convinced that the records and her name
was falsified, and that other drivers’ records were falsified.11 She brought her concerns to
Mazzei and showed him the suspected paperwork. Mazzei said that he agreed and that he
would “take care of it.” About one month later, she concluded that she could no longer work as a
19A examiner because she believed that she was violating her promise to ensure the safety of
the driver and the children.
In June, 2009, Mercado accepted a Union flyer from someone on the sidewalk outside
the Employer’s premises. She stated that a few days later, Mercado was in the parking lot at the
end of the day and greeted Mazzei there. He asked her whether she was “in agreement with the
Union or not.” Mercado replied that she did not want the Union and was happy with the
Employer. Mazzei did not deny this conversation.
A few days later Mercado was asked by employees Frees and Rink to sign the anti-
union petition. Mercado said that she had to think about it. The following day, Mercado’s friend
suggested that she sign the petition. Mercado went into the office and asked Cuddy where the
petition was. Cuddy replied that Frees and Rink had it. They were in the office at the time, and
came out and gave Mercado the petition which she signed. In early June, Cheatham was asked
by employees Frees and Rink to sign the anti-union petition and she refused.
Mazzei denied speaking to Mercado about the Union or asking what her views on the
Union were.
On June 15, Cheatham wrote to the Employer’s headquarters, advising that due to
“personal reasons” she could no longer work as a 19A examiner, and asked to work as a driver.
The Respondent granted her request on June 17.

11 Cheatham identified the prior 19A examiner, Lawrence Iannucci, the Respondent’s safety
supervisor, as perhaps being responsible for the improper data. At hearing, Iannucci denied any
wrongdoing.
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Cheatham stated that after resigning as a 19A examiner, she contacted Union agent
Ebert and told him that she found drivers’ records which were falsified. She offered to help the
Union’s campaign. It should be noted that she had no contact with the Union from the time she
attended a Union meeting in January until she spoke with Ebert in mid June.
Union agent Ebert stated that on June 19, 2009, he sent identical letters to the
Respondent at its Long Island headquarters, its Middletown operation and to its attorneys
advising that Cheatham is a “member of the Teamsters Contract Committee at
Acme/Middletown. Any attempt on the company’s part to harass, intimidate or otherwise
interfere with her lawful rights will be met by the full force of the law.” The letter also advised that
“as the former 19A Examiner, Ms. Cheatham has evidence that 19A certifications were allegedly
falsified at Acme. We are turning that investigation over to the appropriate state authorities. Any
attempt to retaliate against her will subject her to whistleblower protection under NY State
statute.” Ebert received no response to the letters.
Poisella and Mazzei received the Union’s June 9 letter. Wolven testified that when the
facility received it, she gave it to Mazzei who stated that “he was surprised that she was – as he
called her – the rat, and that she would have to go now.” Wolven noted that Mazzei often said
that other employees “had to go,” for example, Peter Cortez because he was “no good,” half the
mechanics, and “anyone who stood up to him.”
Cheatham stated that on July 21, 2009, she was driving children to their homes at the
end of the school day, when she overheard Justin12 say to monitor Mercado that “I can’t
breathe.” Mercado immediately sat with the child and asked if he could sing the “abc’s.” He said
he could and they began singing together. Cheatham asked if everything was okay and
Mercado said yes, and told her that he was all right and happy. Cheatham continued driving and
announced that she would call the dispatcher. At that moment, there was a radio transmission
involving the transport of a child to the police station. Cheatham had been trained to stay off the
radio when an incident is being reported. Instead, she used her cell phone to call the dispatcher
while she was driving.
Cheatham stated that she was connected to the dispatcher, was placed on “hold,” but
then was disconnected. Two seconds later Cheatham again called while they were en route to
the child’s house. Dispatcher Cuddy answered the phone and Cheatham told her that Justin
said he could not breathe, that they were then at the child’s house and the child was being
released to the babysitter, and asked for instructions. It must be noted that Cheatham later
testified that she told Cuddy that she was only two minutes from his house and that she would
keep driving there. She further stated that she was two minutes from the house when she heard
him say that he could not breathe. Mercado stated that when Cheatham was speaking to
Cuddy, they were arriving at the child’s house. According to Mercado, Cheatham asked Cuddy
what they should do, and was told to file a report when they returned to the facility.
Mercado stated that she told the babysitter that the child said that he could not breathe.
The babysitter responded that he always “plays like that” but there is nothing wrong with him.
Cheatham stated that the child showed no signs of difficulty breathing, and in fact he
was singing. She did not check the child to see whether he was all right. The bus returned to the
facility and she and Mercado completed incident reports. When Cheatham handed her report to
Cuddy, Cuddy wrote “reported to dispatch after child was home.” Cheatham protested that that

12 Justin’s last name is omitted from this Decision.
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statement was not true. Cuddy did not reply. She stated that she asked that it be changed and
Cuddy said that she should not worry about it.
Mercado wrote that the time of the incident was “2:45” because that was the general
time of arrival at Justin’s house, that it was the approximate time that the incident occurred, and
was about the time that they arrived at the child’s home. The child at issue was the first one to
be dropped off at home on that run.
At hearing, Cuddy testified that Cheatham called her after she left Justin at the home,
explaining to her that Justin was having problems breathing and that they were close to the
home so they dropped him off. Cuddy asked why she did not call before dropping him off, and
Cheatham replied that she was “so close to the house.” Cuddy reported the incident to VMC
who asked her where the child was and whether “911” was called. Cuddy denied that Cheatham
told her that she was just arriving at the house.
Cheatham stated that the following day, July 22, Cuddy and Mazzei told her that she
was suspended because she wrote the incident report wrong. She asked why, and Mazzei said
that VMC did not like the way she wrote the report. Cheatham stated that she told Cuddy that
the report improperly says that she called the dispatcher after she dropped off the child, but that
she has her cell pone records which show that she was talking to Cuddy when the child was still
on the bus. Cuddy refused to accept the records and suggested that she send them to the
human resources department on Long Island. Cheatham gave Cuddy a copy of those records.
That day, Cheatham faxed a letter to the Respondent which noted that the incident
occurred at 2:45 p.m.
On the same day, July 22, VMC Transportation Manger Edwin Morales sent a letter to
Mazzei which stated that he received the incident reports of Cheatham and Mercado and
Cuddy’s note, and he requested the immediate suspension of both until an investigation is
conducted and a determination made. The following day, July 23, Morales wrote that he had
requested from Mazzei the Employer’s written policy concerning “what drivers and monitors are
to do … in the event of an incident/accident and how and when they are to report it to dispatch.”
The letter further noted that on July 23 Mazzei asked that VMC write a memo of
disqualification for the driver and monitor for poor judgment and not communicating with
dispatch in a timely manner. Morales wrote that VMC already recommended that they be
suspended, and noted that a final determination had not yet been made. Morales concluded by
asking Mazzei again to send VMC a copy of Acme’s policy. Mazzei and the Respondent’s
counsel denied that the Respondent received VMC’s July 23 letter, but Cuddy stated that she
received it, and human resources director Poisella testified that he received it from
Mazzei.13Mazzei did not recall asking Morales, as set forth in the letter, to write a letter of
disqualification, however he conceded asking Morales if VMC had decided to disqualify them.
The following day, July 24, Morales wrote to Mazzei, recommending that Cheatham and
Mercado attend a three hour recertification in-service class on Sensitive Issues and Children
with Special Needs, and that once they attend that class they would be permitted to “participate
in any and all programs involving the Orange County Pre-School children.” Mazzei stated that
he sent that letter to Poisella.

13 G.C. Ex. 48; Tr. 815, 1170, 1352.
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An Employee Status Report dated July 29 signed by Cuddy stated that Cheatham “did
not report an incident with a child immediately as required.” On July 29, Cuddy told Cheatham
and Mercado that they were fired for failing to follow company policy. That day, Cheatham sent
a letter to the human resources department with her cell phone records which indicated that she
called the facility at 2:54 in a call that lasted three minutes, during which Cheatham said that
she was put on “hold” and was then disconnected, and a second call was placed at 2:56 p.m.
which consumed two minutes. Cheatham stated that she did not leave the child’s home until the
end of the second call. The letter stated that the records show that the child was still on the bus
when she called the dispatcher.
Cheatham testified that the established time for the first drop-off was 2:45 p.m., and that
it should have taken her 15 to 20 minutes to travel to the next stop. Accordingly, she left the first
stop at 2:58 p.m., thirteen minutes after the set drop-off time. She could not recall if she told
Cuddy that she would be late for the rest of the steps inasmuch as there is only a five minute
“window” at each stop.
Cheatham stated that in the event of an emergency or if “something happened to a child”
she was supposed to call the dispatcher on the radio.
Mazzei testified that he was told by Cuddy that Justin said that he could not breathe and
that Cheatham-Mercado dropped him off since they were close to his house and did not call the
dispatcher until after he was dropped off. Mazzei stated that in this circumstance, they should
have called 911 or the dispatcher immediately. He stated that he spoke to Cheatham after the
incident and was told by her that “I was that close. I just figured I would drop the child and then I
would call.” Mazzei stated that he told her the Employer’s policy regarding immediately reporting
incidents and Cheatham said that she was aware of it. Mazzei stated that he did not make the
decision to terminate Cheatham and Mercado and made no recommendation concerning their
termination.
Poisella testified that Mazzei informed him of the incident regarding Justin, and he
deiced to fire Cheatham and Mercado because they did not immediately report that incident.
When he made the decision, Poisella had seen the letter sent by Ebert one month earlier
concerning Cheatham’s claims that the Employer falsified information regarding the drivers’
safety documentation. However, that letter did not play a part in his decision to fire the two
women. Poisella also reviewed Cheatham’s cell phone records that she sent him and the
incident reports filed by her and Mercado, but believed that they had not immediately notified
the dispatcher when the incident occurred, relying on the notation in the incident report that the
incident occurred at 2:45 p.m., and the first call was made at 2:54. Poisella informed Mazzei of
his decision, based on the “severity” of the situation – the failure to immediately report that a
pre-kindergarten child with special needs was complaining of difficulty breathing.
Poisella decided not to follow the July 24 recommendation of VMC that Cheatham and
Mercado be required to attend a three hour in-service recertification class and then be permitted
to resume their duties because the Employer holds itself to a higher standard than what VMC
recommends.
H. The Alleged Interrogation of Richard Azar
Richard Azar was subpoenaed by the General Counsel to appear at the hearing. He
testified that some time before the fifth day of the hearing, October 27, 2009, Azar brought the
subpoena in its envelope to show Mazzei that he had been subpoenaed and also to express his
concern about the subpoena and tell him that he did not want to testify because he liked his job
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and did not want to lose it “over something like this.” Azar noted at hearing that the Respondent
did not suggest that he would lose his job because he testified.
The envelope also contained his pre-trial affidavit taken by the General Counsel. Azar
handed the envelope to Mazzei but “forgot” to remove the affidavit from the envelope. Mazzei
took the affidavit from the envelope and read it, asking “did I really do this?” Azar said “no.”
Mazzei then asked him if he would “be willing to voluntarily write a statement.” Azar agreed and
wrote the statement. Mazzei had it notarized and sent it to human resources director Poisella.
Azar did not recall the contents of the statement and it was not offered in evidence, but it related
to Mazzei’s interrogation of him, set forth above.
Azar expressly testified that he did not ask Mazzei to read the affidavit. Rather, he
handed Mazzei the whole envelope containing the subpoena and affidavit.
Mazzei testified that Azar told him that he had a subpoena and had to go to court.
Mazzei told him to give the subpoena to the dispatcher, but Azar said that he wanted Mazzei to
look at it. Azar gave him the envelope, and Mazzei removed the subpoena and read it. Mazzei
said that there were other papers in the envelope and returned it to Azar who said that he
wanted Mazzei to read it “because this is untrue. I gave testimony over the phone, and these
are not my words. They were changed.” Mazzei read the affidavit. Azar asked him what he
could do about the situation and Mazzei advised that Azar, if he wanted, could “give us a
voluntary statement on anything you want.” Azar left the room and returned with a statement
which he gave to Mazzei.
Azar specifically denied that he asked Mazzei to read the affidavit, and also denied that
his intent was to talk to him about the subpoena and the affidavit. Rather, he stated that the
purpose of his visit to Mazzei was “to let him know that I had been subpoenaed.”
Mazzei sent Azar’s statement to Poisella, telling him that the affidavit about him “said
some awful things about me in it and he said that he didn’t say these things.” Poisella said that
there was not much they could do about it, when Mazzei said “well, he volunteered the
statement.” The “voluntary” statement that Azar wrote that day was not offered in evidence by
the Respondent.
Analysis and Discussion
A. Credibility
This case presents marked differences in versions of events by witnesses for the
General Counsel and the Respondent. “The Board has found that … “one-on-one credibility
contests may be resolved with reference to ‘the weight of the respective evidence, established
or admitted facts, inherent probabilities, and reasonable inferences which may be drawn from
the record as a whole.’” RC Aluminum Industries, 343 NLRB 939, fn. 1 (2004).
The principal differences in testimony is that between Wolven and Mazzei. Wolven was
the dispatcher who was then promoted to a supervisor’s position as assistant terminal manager,
both positions while Mazzei was the terminal manager. In those positions, Wolven had the trust
and confidence of Mazzei, and had access to his thoughts concerning the Union and its
supporters and the Respondent’s position regarding unionization. I credit her testimony.
The Respondent contends that Wolven should be discredited because, following her
tenure as assistant terminal manager she was demoted to dispatcher and then discharged.
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Wolven stated that she was not happy when Cuddy was promoted to assistant terminal
manager and she was demoted to dispatcher, and admitted saying that she would try to make
Cuddy “look bad.” Further, although she said that she was not angry at the Employer, she did
“have something against” Cuddy and Mazzei, against whom she is considering filing a sexual
harassment lawsuit. These instances do not harm her credibility for the following reasons.
I credit Wolven because her testimony has been corroborated by other witnesses whose
versions are the same and they are consistent with other witnesses. For example, she
corroborated the testimony of Pomella and Haskell that Mazzei refused Haskell permission to
retrieve her belongings from the bus after her suspension. Mazzei’s testimony that Haskell did
not ask for permission to take her personal items, including a pocketbook, is not believable.
Rather, as testified by the General Counsel’s witnesses, Mazzei said that she was suspended
and had to leave, and then went to the bus to retrieve her items and played the tape recording
she left on the bus.
In addition, Wolven demonstrated her lack of bias by refusing to agree with the
testimony of another General Counsel witness. For example, Wolven denied Kuhhorn’s
testimony that she completed the dry run on August 27 and gave the papers from that run to
Wolven.
Another instance of Mazzei’s lack of credibility is his testimony concerning Azar,
a current employee. Azar impressed me as someone who could be, and was, intimidated by
Mazzei. At the time he gave Mazzei the envelope containing his subpoena and affidavit he had
been disciplined several times by Mazzei for various reasons including lateness, having
unauthorized food and beverages on his bus, and problems with his personal hygiene.
Thus, when Mazzei read in the affidavit that Azar stated that he had interrogated him
and asked him “did I really do this” it is reasonable that Azar would have said no. After all, as
Azar explained at hearing, he did not want to testify because he liked his job and did not want to
lose it “over something like this.” Clearly, he was reluctant to testify because he did not want to
testify to Mazzei’s illegal interrogation.
I cannot find that, as Mazzei testified, Azar voluntarily gave him his pre-trial affidavit and
asked him to read it. The affidavit detailed Mazzei’s illegal interrogation of Azar. His job was
already in peril by virtue of his prior discipline. It would have made no sense for Azar to have
asked Mazzei to read it. As to Mazzei’s testimony that Azar told him that his affidavit was false,
there is no evidence that Azar sought to change his affidavit or complained to the Board agent
after he had given it. In addition, Azar’s “voluntary” statement was not offered in evidence, nor
was he questioned about it at hearing. Further, the fact that Mazzei told his superior, Poisella,
that the affidavit contained some “awful things about me” would have induced Mazzei to try to
have Azar retract those statements, which he did by asking him to write a “voluntary” statement.
Azar’s “voluntary” statement could not have been freely made if he harbored a fear of
the consequences if he did not make that “voluntary” statement. Thus, Azar was the subject of a
prior unlawful interrogation which his affidavit detailed. Mazzei’s questioning of Azar about the
affidavit’s contents, and then request that he recant it, constituted another unlawful
interrogation.
The Board has stated that “the testimony of current employees which contradicts
statements of their supervisors is likely to be particularly reliable because these witnesses are
testifying adversely to their pecuniary interests … [t]hus, a witness’ status as a current
employee may be a significant factor, but it is one among many which a judge utilizes in
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resolving credibility issues.” Advocate South Suburban Hospital, 346 NLRB 209 fn. 1 (2006),
citing Flexsteel Industries, 316 NLRB 745 (1995).
I accordingly do not credit Mazzei where his testimony contradicts any of the General
Counsel’s witnesses, except in the instances noted below, particularly concerning Ebert’s
presence on the Respondent’s property.
B. The Alleged Violations of Section 8(a)(1) of the Act
1. The Alleged Interrogations and the
Creation of the Impression of Surveillance
The complaint, as amended, alleges that the Respondent interrogated employees,
engaged in surveillance of its employees and created the impression in its employees that it had
engaged in surveillance of their union meetings.
The Board has held that “the test for determining the legality of employee interrogation
regarding union sympathies is ‘whether, under all the circumstances, the interrogation
reasonably tends to restrain or interfere with employees in the exercise of their statutory rights.’”
Mathews Readymix, Inc., 324 NLRB 1005, 1007 (1997). Factors which may be considered in
making this determination are (a) the background (b) the nature of the information sought (c) the
identity of the questioner and (d) the place and method of the interrogation. Stoody Co., 320
NLRB 18, 18, 19 (1995). The Board has viewed the fact that an interrogator is a high-level
supervisor as one factor supporting a conclusion that questioning was coercive. Stoody, above.
The General Counsel has the burden of establishing, by a preponderance of the
evidence, that an employer unlawfully created an impression of surveillance. Bridgestone
Firestone South Carolina, 350 NLRB No. 52, slip op. 2 (2007). Whether an employer's
statements or actions have created an unlawful impression of surveillance is based on the
objective test of whether the employees would reasonably assume from the statement or
actions that their union activities had been placed under surveillance, based on the perspective
of a reasonable employee. Flexsteel Industries, 311 NLRB 257 (1993).
I credit Hagelmann’s testimony that one day after the August 19 Union meeting, Mazzei
asked him to step into the garage and told him that “maybe” employee Jenkins was spying at
the Union meeting, and that he had people, including Kellison “looking out” for people. Although
Hagelmann stated that he did not see either man at the August 19 Union meeting Kuhhorn said
that she saw Kellison there. The General Counsel asserts that this evidence constitutes
unlawful surveillance of the employees’ Union activities. Mazzei denied asking Kellison or
Jenkins to attend any Union meeting, and Jenkins’ time records show that he was on Long
Island until 6:30 p.m. that evening.
The issue is whether Mazzei’s statements to Hagelmann constituted the creation of the
impression of surveillance. In determining this issue, I credit Hagelmann’s further testimony that
during that conversation Mazzei asked him what happened at the meeting. As set forth above, I
credit Azar’s testimony that Mazzei called him into his office on the day following a Union
meeting in September and asked him how many people were present and how many voted or
did not vote. I cannot credit Mazzei’s testimony that Azar simply “stopped by my office” and
volunteered that he attended a union meeting only for the food. Mazzei’s questioning of Azar
one day after the Union meeting was consistent with his asking Hagelmann one day after the
meeting he attended for details concerning the meeting. I accordingly credit Hagelmann’s
testimony as to the interrogation.
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I credit Wolven’s testimony that certain employees “voluntarily” went into Mazzei’s office
and spoke about the meeting. However, those workers had allied themselves with the anti-union
movement at the facility, including Frees, Rink and Berlly. Nevertheless, I find that Mazzei
coercively questioned Hagelmann and Azar whose union leanings he apparently did not know,
as to what occurred at the meeting. I accordingly find that Mazzei unlawfully created the
impression of surveillance when he told Hagelmann that he had people at the meeting looking
out for others. Regardless of whether Jenkins or Kellison actually attended the meeting, it is
clear that a reasonable employee would believe that Mazzei had enlisted others to observe the
activities at the Union meeting.
I also credit Weir’s testimony that Mazzei told him that he had given permission to Frees
and Rink to distribute the anti-union petition and asked him about his friends’ views as to the
Union. When Weir said he did not know, Mazzei asked him to tell them to sign the petition. Weir,
a current employee, testified consistently with Frees who said that Mazzei permitted them to
circulate the petition. I find that Mazzei’s questioning of Weir as to his friends’ union sympathies
and encouraging him to have them sign the petition violated the Act. Garrett Railroad Car, 255
NLRB 620, 628-629 (1981).
I credit Mercado’s testimony that in June, 2009, Mazzei asked her in the parking lot
whether she was “in agreement with the Union or not.” The question, asked by the highest
official at the Middletown facility, directly required her to state whether she was a Union
supporter, and was unlawful. I accordingly find that Mazzei unlawfully interrogated Mercado
about whether she supported the Union.
The complaint, as amended, alleges that the incident at the Quick Chek constitutes the
creation of the impression of unlawful surveillance of employees’ Union activities. As set forth
above, it is undisputed that Mazzei and Hernandez drove to the Quick Chek and confronted
Pomella, Brandon and his monitor Larli.
I credit Wolven’s testimony that Mazzei told her that he would go to that location to
record a meeting between Pomella, Blanton and Larli. Even if Cuddy’s testimony that she had to
speak to Blanton and could not reach him is credited, nevertheless Blanton was in a legitimate
park out location that he had used frequently in the past, and, according to his testimony, had
called Cuddy to report that he was at that location. There was no evidence that he spent an
inordinate amount of time there or that he was late for his afternoon run. Accordingly, there was
no reason that Cuddy could not have called and contacted him when he resumed his run. There
was no evidence as to the reason for the urgency of her need to speak to Blanton.
Mazzei took his camcorder because the Employer’s camera was missing from the
accident kit. There was no reason for him to believe that an accident had occurred. Blanton was
at a proper park out for the appropriate time period. I credit Pomella and Blanton that they met
at the location and spoke at a table there. Thus, I do not credit Mazzei and Hernandez’
testimony that the bus was empty and the driver and monitor were not inside the Quick Chek.
I further credit the testimony of Pomella and Blanton that Mazzei pointed the camera at
them. I cannot credit the testimony of Mazzei and Hernandez that Mazzei did not do so. If the
camera was in the car as Mazzei stated, Pomella and Blanton would not have seen it.
It is not necessary to find that Mazzei traveled to the Quick Chek facility in order to
photograph a meeting between Pomella, Blanton and Larli. However, based on Wolven’s
credited testimony that Mazzei told her that was his purpose, and upon returning, told her that
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he caught them meeting I make such a finding.
The clear implication of the evidence is that Mazzei pointed the camera at Pomella who
was unlawfully discharged two days earlier, and Blanton in order to give the impression that
they were being recorded. It does not matter that no pictures were actually taken. Clearly,
Mazzei created the impression that their meeting was under surveillance. Whether or not they
actually planned to meet or in fact met to discuss the Union is irrelevant because the violation
was established by Mazzei’s creation of the impression of surveillance in appearing to
photograph them.
The Board has held that photographing of employees’ union activities without some
legitimate justification constitutes a form of surveillance, or at least creates that impression and
tends to create fear among employees of future reprisals. Mercedes Benz of Orland Park, 333
NLRB 1017, 1041 (2001). Mazzei’s pointing a camera at the employees tended to interfere with
their protected, concerted right to meet with each other. The Respondent has established no
legitimate justification for its conduct. Even given Mazzei’s reasons for taking the camera,
Mazzei examined the bus and apparently found no damage. His only reason for pointing the
camera was to intimidate the employees. Regardless of whether the camera was actually
operating the effect was the same. Chester County Hospital, 320 NLRB 604, 619 (1995) where
a violation was found in the employer’s “pretending to photograph or videotape employees’
union activity” by “knowingly pretending to be filming when not actually doing so.” In addition,
whether or not Pomella, Blanton and Larli were actually meeting to discuss Union matters is
irrelevant. Mazzei created the impression that their meeting was under surveillance by
photographing or pretending to photograph them. See Jumping Jacks Div., U.S. Shoe, 206
NLRB 88, 92 (1973).
At the hearing the complaint was amended to allege that Mazzei interrogated regarding
the issues in this case, in violation of Johnnie’s Poultry Co., 146 NLRB 770 (1964).
In Johnnie’s Poultry, the Board recognized that an employer could properly question
employees on matters involving their Section 7 rights “where such interrogation is necessary in
preparing the employer’s defense for trial of the case.” However, the Board established “specific
safeguards designed to minimize the coercive impact of” such interrogation. The employer
“must communicate to the employee the purpose of the questioning, assure him that no reprisal
will take place, and obtain his participation on a voluntary basis; the questioning must occur in a
context free from employer hostility to union organization and must not be itself coercive in
nature; and the questions must not exceed the necessities of the legitimate purpose by prying
into other union matters, eliciting information concerning an employee’s subjective state of mind,
or otherwise interfering with the statutory rights of employees.”
The Board has stated that it “has consistently required an employer to administer three
warnings to each employee it interviews in preparation for an unfair labor practice
proceeding….” Bill Scott Oldsmobile, 282 NLRB 1073, 1075 (1987). The Board found in that
case that by failing to administer all three warnings that the respondent violated the Act.
Here, it is apparent that Mazzei questioned Azar regarding his affidavit prior to Azar’s
being called to testify. Mazzei knew that Azar was subpoenaed to testify and would testify in this
matter. Mazzei’s questioning him about the veracity of his affidavit and asking him to make a
statement contradicting it constituted unlawful interrogation of Azar.
I accordingly find and conclude that Mazzei unlawfully conducted an interview
concerning the issues in this case in violation of Section 8(a)(1) of the Act by not providing Azar
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with the assurances required by Johnnie’s Poultry, 146 NLRB 770 (1964). In addition, the
interview was conducted by Mazzei, a manager who had previously unlawfully interrogated Azar
as to the events at a Union meeting, and had engaged in other activity which was hostile to
union organization. Johnnie’s Poultry, above. Accordingly, the interview concerning Azar’s pre-
trial affidavit was unlawful.
2. The Alleged Unlawful Rules
The complaint alleges that in August, and September, 2008, the Employer promulgated
and maintained rules prohibiting union solicitations distributions on company property, and
prohibiting employees from discussing the union at work.
I credit the mutually consistent testimony of Kuhhorn and Mieses that in mid August,
2008, Mazzei told them that they could not distribute Union flyers “on company property,” and
also the testimony of Pomella and Mieses that Mazzei told them they could not distribute Union
cards on company property.
Pomella credibly stated that on September 24, the day after she received a memo from
Poisella stating that the presence of “outsiders” would not benefit their relationship, Mazzei
prohibited her from talking to her co-workers at their buses, in the parking lot, and did not want
her to conduct any business on company property.
The Employer’s handbook has a facially valid no-solicitation no-distribution rule.
However, Mazzei’s instructions to the workers that they could not engage in union solicitation or
distribution of union literature on company property was unlawfully broad.
Section 7 of the Act guarantees to employees the right of self-organization, which
“necessarily encompasses the right effectively to communicate with one another regarding self-
organization at the jobsite.” Beth Israel Hospital v. NLRB, 437 U.S. 483, 491 (1978).
The Respondent’s prohibition of distribution of union literature on company property is
unlawfully broad and violates Section 8(a)(1) of the Act, both because Mazzei singled out union
activity, and because the rule extended to union solicitation and distribution activities engaged in
by employees on their own time in nonwork areas of the facility. Powellton Coal Company, 354
NLRB No. 60, slip op. at 4 (2009); DPI New England, 354 NLRB No. 94, slip op. at 19 (2009);
Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945); Our Way, Inc., 268 NLRB 394, 394-395
(1983). Winkle Bus Co., 347 NLRB 1203, 1216 (2006), quoting Laidlaw Transit Inc., 315 NLRB
79, 82 (1994). Loparex LLC, 353 NLRB No. 126, slip op. at 10 (2009).
In addition, the Employer unlawfully enforced its no solicitation-no distribution policy by
prohibiting union solicitations and distributions while at the same time permitting the solicitation
of signatures on the anti-union petition circulated by Frees and Rink. Register Guard, 351 NLRB
1110, 1118 (2007). In this regard, Mazzei conceded being asked by Frees or Rink if they could
distribute “literature” to the workers and he agreed, provided that such distribution not interfere
with the work flow and that neither they nor the employees were on company time. Although
Mazzei was allegedly not shown the petition I credit Weir’s testimony that Mazzei told him that
he permitted the workers to sign the petition which he called a “stop petition against the union.”
The “no-talking” rule violates Section 8(a)(1) and (3) of the Act. Alan Ritchey, Inc., 354
NLRB No. 79, slip op. at 2 (2009). There is no evidence that the Respondent had prohibited
anyone but Pomella from talking. It is clear that Mazzei’s warning was directed at Pomella’s
open and active involvement in encouraging employees to support the Union campaign. There
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was no evidence that she had conducted any “business” on company property other than
soliciting employees to sign cards for the Union. In contrast, Frees and Rink were free to solicit
their co-workers to sign the anti-union petition.
C. The Violations of Section 8(a)(3) of the Act
1. The Subjection of Employees’ Work to Closer Scrutiny
a. Pomella
As set forth above, on the same day that Mazzei instructed Pomella not to speak to her
co-workers, he again called her into his office, and after he refused her request for a witness,
warned her that if she left she would be disciplined for insubordination. Mazzei questioned her
about an alleged discrepancy in her time sheet which she explained to his satisfaction.
I cannot credit Mazzei’s testimony that he was doing a routine route audit and that her
route was the first of 30 to be selected. There was no evidence that he specifically questioned
30 employees as he testified. The timing of this alleged route audit coming shortly after she had
been unlawfully warned not to speak to her co-workers suggests that her work was being
closely monitored as a result of her open activities in behalf of the Union.
Further, Wolven credibly testified that she was asked by Mazzei to check the time sheets
and runs of employees he believed to be Union supporters to see if they were stealing time. She
did so with respect to Pomella and others.
I accordingly find and conclude that the General Counsel has proven that Mazzei’s
scrutiny of Pomella’s work was motivated by her activities in behalf of the Union and that the
Respondent has not shown that it would have done so even in the absence of her Union
activities. Wright Line, above.
b. Bartula
I credit Bartula’s testimony that she told Mazzei that she “ran” the Union’s campaign at
First Student, and that Mazzei was aware that she worked with Union agent Garlinghouse on
the preparation of the seniority list. She signed a card for the Union on August 19 and attended
three Union meetings. I credit her further testimony that Mazzei told her at the start of her
employ that she was one of the best workers he had, but then later said that she was not the
person she was when she was hired, and did a “horrible, terrible” job.
She was the subject of criticism by Mazzei concerning her job performance. On the first
occasion, Mazzei complained that a substitute driver was lost, but agreed that it was not
Bartula’s fault. Then she made an unauthorized stop for which she apologized, but claimed that
other drivers did the same thing. Thereafter, she and her monitor complained that the
paychecks were not available, which affected the entire workforce, the monitor threatening to
call the Labor Board and Bartula telling Mazzei that the company could not legally hold their
checks. Mazzei threatened to remove her home bus privilege and perform an audit but did
neither. Mazzei also told her that she could no longer park out but this was consistent with the
Respondent’s changed policy. Finally, Mazzei alleged that Frees and Rink complained that she
was harassing them, but then the complaint was withdrawn. It appears that there was some
type of exchange between Bartula, her boyfriend and Frees and Rink.
I cannot find that the General Counsel has established that the questioning of Bartula
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concerning her job performance was motivated by her Union activities. It is true that Bartula
made known to Mazzei that she was involved with the First Student union campaign, but that
knowledge came to Mazzei’s attention in June, 2008 when she began work. However, she was
not an open and active Union supporter here. Even assuming that I find that a prima facie
showing has been made, I do not agree with the General Counsel that Mazzei’s questioning of
Bartula beginning in September demonstrates a pattern of persistent questioning or unlawful
threats as to amount to a prima facie showing of discrimination for her Union activities or that
the Respondent would not have taken these actions even in the absence of her Union activities.
Wright Line, above. The comments to Bartula were related to changes in the Respondent’s work
procedures involving park outs, home bus privileges and unauthorized use of the bus, none of
which have been alleged or shown to be illegally motivated.
2. The Involvement of the Police to Remove a Union Representative
As set forth above, Union agent Ebert testified that he handbilled employees while
standing on the sidewalk of the Respondent’s premises and that Mazzei confronted him and
then called the police who visited the premises and spoke to Ebert with employees being able to
observe the scene.
Witnesses for the General Counsel stated that they observed Ebert only on the sidewalk
while the Respondent’s witnesses, including Mazzei, Amundson and Hernandez stated that they
saw Ebert on the company property, Mazzei stating that he saw Ebert walk 100 feet onto the
driveway.
In this instance I credit Mazzei, Amundson and Hernandez. Ebert testified that he sought
to publicize the October 9 and 25 Union meetings. He stated that Pomella and Hagelmann
refused to distribute the flyers advertising the meetings, saying that they were afraid to do so, so
he distributed them. He could have remained on the sidewalk even if he could not obtain the
help of the workers. But it is apparent that he wanted to go further. He stated “I couldn’t get
anyone to distribute handbills on the property, so I was forced to do it myself.” Ebert’s preferred
method of distributing the flyers was that employees themselves perform this task. He asked
employees to do so suggesting that they give out the flyers to their co-workers on company
property. It therefore follows that Ebert would have sought to hand out the flyers on company
property as the most direct way to reach the workers. There was evidence that only a few
drivers took flyers as they entered or left the premises in the company bus or their personal
vehicle. It stands to reason that Ebert would enter the premises to hand the flyers to the workers
while they were present on the company grounds.
I accordingly find that in those instances where Mazzei directed Ebert to leave the
property and summoned the police, Ebert had entered the Respondent’s property. Where a
non-employee trespasses onto an employer’s property, the Act is not violated when the
employer directs him leave its private property and calls the police to enforce such an order. It
further follows that there can be no unlawful surveillance where the employer is acting properly
in seeking to evict the trespasser from its property. Hoschton Garment Co., 279 NLRB 565, 566-
567 (1986); Ordman’s Park & Shop, 292 NLRB 953, 956 (1989); Berton Kirshner, Inc., 209
NLRB 1081, 1081 (1974).
3. The Discharges
The question of whether the Respondent’s discharges of the six employees involved
herein were unlawful is governed by Wright Line, 251 NLRB 1083 (1980). Under that test, the
General Counsel must prove by a preponderance of the evidence that union animus was a
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substantial or motivating factor in the terminations. He must show union activity by the
employees involved, employer knowledge of such activity, and union animus by the
Respondent.
I find that the General Counsel has proven that the discharges of the individuals who
were terminated here were all motivated by union animus. The discharges all were made during
an ongoing campaign by the Union to organize the Respondent’s employees. The Respondent
was well aware of the campaign and its director of human resources, Poisella, issued a memo
which stated that, although the Employer respects the rights of its employees to choose make
up their own mind regarding representation, it was the Respondent’s belief that employees
would conclude that “the presence of outsiders would not benefit our relationship.” Further, the
statements by Mazzei to Wolven that the drivers and monitors he discharged were supporters of
the Union and he had to “get rid” of them establish the animus of the Respondent.
The Respondent argues that even assuming that Mazzei possessed animus toward the
Union and its supporters, the decisions to discharge were made by Poisella and not by him.
First, Mazzei admitted recommending the termination of Mieses. Secondly, it is clear that
Poisella was informed by Mazzei concerning the circumstances of the incidents leading to the
decision to discharge the workers. Although Poisella may not have asked for Mazzei’s
recommendations concerning the employees, it is clear that Mazzei’s discussions with Poisella
dealt with the alleged severity of the wrongdoing and the need for severe discipline. Mazzei’s
testimony that the incidents on the bus constituted the “highest tier of violation” necessarily
involved the highest tier of discipline.
The Respondent further argues that it possessed no animus toward the Union because it
sought to hire all of its predecessor’s employees who, it believed were all members of the
Union. If it hired all of those employees presumably the Respondent would be subject to a
successor’s obligation to bargain with the Union and by knowingly seeking to hire those workers
it demonstrated its lack of animus toward the Union.
Where this argument fails is the Respondent’s acknowledged desire to hire the
employees of predecessor companies regardless of whether they were represented by a union.
Thus, the Employer was anxious to fill its ranks with drivers who knew the routes they would be
driving which would result in a problem-free start up of its operation. More importantly, it had to
hire 115-120 people within a short period of time in order to fulfill its contract with the County,
and the most obvious source of such workers was the prior employer.
Once the General Counsel has made the requisite showing, the burden then shifts to the
Respondent to prove, as an affirmative defense, that it would have discharged the employees
even in the absence of their union activity. To establish this affirmative defense “an employer
cannot simply present a legitimate reason for its action but must persuade by a preponderance
of the evidence that the same action would have taken even in the absence of the protected
activity.” L.B.&B. Associates, Inc., 346 NLRB 1025, 1026 (2006). “The issue is, thus, not simply
whether the employer ‘could have’ disciplined the employee, but whether it ‘would have’ done
so, regardless of his union activities.” Carpenter Technology Corp., 346 NLRB 776, 773 (2006).
Accordingly, the Respondent may present a good reason for discharge, but unless it can
prove that it would have discharged the worker absent her union activities, the Respondent has
not established its defense. If the General Counsel presents a strong prima facie showing of
discrimination, the Respondent’s burden is “substantial.” Vemco, Inc., 304 NLRB 911, 912
(1991). “The policy and protection provided by the Act does not allow the employer to substitute
‘good’ reasons for ‘real’ reasons when the purpose of the discharge is to retaliate for an
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employee’s concerted activities. Under Wright Line, an employer cannot carry its burden of
persuasion by merely showing that it had a legitimate reason for taking the action in question;
rather it “must show by a preponderance of the evidence that the action would have taken place
even without the protected conduct.” North Carolina Prisoner Legal Services, 351 NLRB 464,
469, fn. 17 (2007).
Therefore, a careful examination of the Respondent’s record of discharging other
employees for the same offense must be made. Differences in treatment of employees who
committed the same or similar offenses is an important factor to be considered in evaluating the
Respondent’s defense. The presence of disparate treatment toward the dischargees indicates a
discriminatory motive. Central Valley Meat Co., 346 NLRB 1078, 1079 (2006).
“To support an inference of unlawful motivation, the Board looks to such factors as
inconsistencies between the proffered reasons for the discipline and other actions of the
employer, disparate treatment of certain employees compared to other employees with similar
work records or offenses, deviations from past practice, and proximity in time of the discipline to
the union activity.” Robert Orr/Sysco Food Services, 343 NLRB 1183, 1184 (2004).
a. Miosotis Mieses
As set forth above, Mieses spoke with Union agent Garlinghouse and then with Ebert at
the entrance to the facility in August, 2008. She was with co-worker Kuhhorn when Ebert gave
Kuhhorn a flyer in mid August. Mieses gave uncontradicted testimony that she told assistant
manager Calli that she and Kuhhorn were involved with the Union and would be distributing
flyers.
The Respondent correctly argues that Ebert did not testify that Mieses was present
when he was confronted by Mazzei, yet Mieses stated that when she told Mazzei that she was
handing out flyers, and later when Pomella told Mazzei that she, with Mieses present would do
so, Mazzei demanded that Ebert leave the property. Another alleged inconsistency noted by the
Respondent is that Mieses stated that Mazzei told her when he was outside the premises that
she could not distribute flyers, but Kuhhorn stated that they went into the building where Mazzei
made that statement. However, Ebert did state that when Kuhhorn told Mazzei that they would
be distributing flyers for the Union, Mieses was with her. Also, the Respondent’s argument that
Ebert was not present at the facility until October is incorrect. Ebert testified that he met with
Mieses in mid August directly in front of the facility.
Further, the Respondent argues that Mieses could not have been with Kuhhorn when
Kuhhorn spoke to Mazzei because Mieses testified that she went home immediately after the
incident where Mazzei yelled at Ebert. However, Kuhhorn specifically testified that Mieses was
with her when she spoke to Mazzei at 4:00 p.m. Mieses stated that she generally went home
after her last run, at 4:00 p.m. Similarly, Pomella testified that she spoke to Mazzei at about 3:20
p.m. with Mieses, and Mieses who was with her testified that she went home at 4:00 p.m.
Accordingly, the evidence is clear that Mieses engaged in activities in behalf of the
Union by assisting Kuhhorn and Pomella in distributing cards and flyers at the Respondent’s
facility. She credibly testified that, pursuant to Union agent Ebert’s advice, she informed Mazzei
that she was involved with the Union and would be distributing flyers. Further, dispatcher
Wolven credibly stated that Mazzei told her a few days before Mieses was fired that she was a
“big union supporter” and that he would be “getting rid of another union supporter.”
The timing of Mieses’ discharge supports a finding that it was effected because of her
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activities in behalf of the Union. Thus, only a few days following her advice to Mazzei that she
was organizing in behalf of the Union she was fired.
Thus, a strong prima facie showing has been established that Mieses Union activities
were a motivating factor in her discharge. Wright Line, above. The Respondent’s defenses
include that Mieses was fired within her 90 day probationary period. As set forth above, there is
no written evidence that a probationary period exists. The fact that certain benefits are provided
after 90 days, or that other employees have been discharged within 90 days of their hire is not
evidence of such a period. Even if a probationary period was in effect, an employee cannot be
discharged in violation of the Act simply because she has not completed her probationary
period. Accordingly the question becomes whether Mieses would have been discharged even in
the absence of her Union activities.
As set forth above, Mieses admitted being told that she was not entitled to be paid for
the time in fueling the buses. I credit her testimony that she obeyed that instruction and did not
claim time for that task after being warned. Wolven testified that Mieses persisted in claiming
the time in the week ending August 9. That is true, as set forth in the time sheet for that week
which establishes that although she claimed the time for fueling the bus on August 4, two days
later, on August 6, she did not fuel the bus and instead waited for another vehicle to return her
to the terminal.
Accordingly, there was no issue regarding Mieses’ fueling the buses following August 4,
the last time she claimed the time for that job. Thus, one of the reasons for her discharge the
following week, that she continued to claim the time for fueling the buses, has no merit.
The other reasons for Mieses’ discharge were that she was disrespectful and
argumentative with the dispatcher, office staff and management. Wolven testified that the
detailed memo setting forth Mieses’ poor attitude was accurate but that it was written at
Mazzei’s behest. Mazzei testified that he was asked for his recommendation by the human
resources department, and he recommended termination. Accordingly, he decided to fire
Mieses and not Wolven.
There was no specific evidence that Mieses was disrespectful to management as set
forth in the employee status report or in the memo. No details were given regarding her
allegedly disrespectful behavior, just that she “always” argued with the office staff concerning
her paperwork and time sheets. Mieses admitted that she questioned the managers as to why
her pay check was short before they told her that she would no longer be paid for the time in
fueling the buses. Her request for an explanation was reasonable, and when she was told to
stop claiming the time for fueling the buses she did so. If the allegedly disrespectful behavior set
forth in the memo was related to the bus-fueling issue, it is clear that that matter had been
resolved at least as of August 5 when she no longer claimed the time for fueling the bus. There
were no other details of her other alleged arguments.
In addition, Mieses was not disciplined for her alleged disrespectful behavior, apart from
her summary termination, and the Respondent’s progressive discipline policy was not utilized to
attempt to correct her misbehavior.
I accordingly find and conclude that the Respondent has not met its burden of proving
that Mieses would have been discharged even in the absence of her union activities. Wright
Line, above.
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b. Penny Kuhhorn
Kuhhorn was the first, and one of the most active advocates in behalf of the Union. She
met with Union agents Garlinghouse and Ebert at the start of the campaign in mid-August and
was present with them at the Respondent’s facility and was given flyers and authorization cards
to distribute to her co-workers which she did. She advised managers Calli and Mazzei that they
intended to distribute flyers and was told that they could not do so on company property. Mazzei
conceded that he saw Kuhhorn standing near Union agent Garlinghouse where the buses
entered the property and that they were handing out flyers.
Kuhhorn was discharged two weeks later, with Mazzei telling Wolven that she “was a big
union supporter and that this … her refusal to do a dry run would get rid of her.” I accordingly
find that the General Counsel has established a strong prima facie showing that Kuhhorn’s
discharge was motivated by her union activities.
The evidence establishes that Kuhhorn completed her original dry run on August 20. It
is undisputed that she was not advised until one week later, August 27, that the dry run she had
performed had to be repeated because it was too lengthy and failed to use a highway.
I cannot credit Mazzei’s testimony that Kuhhorn refused to do the second dry run on
Wednesday, August 27. If Kuhhorn told him to “do it himself” it is clear that he would have
suspended or terminated her on the spot for insubordination. According to Kuhhorn’s testimony,
which I credit over Mazzei’s, Kuhhorn first offered to the re-run that day with her grandson.
When Mazzei refused, according to Wolven and Kuhhorn, she offered to do it in her own
vehicle. He refused permission for that procedure, although, according to Wolven, Mazzei
thereafter granted such permission to other drivers due to their unavailability when the buses
were accessible. Then, Kuhhorn offered to do the re-run the following day, August 28. Mazzei
refused that offer saying that it had to be completed that day, August 27.
I cannot credit Kuhhorn’s testimony that she did the re-run in her own car on August 27
and gave the papers to Wolven that afternoon.14 Wolven denied that Kuhhorn did so. In any
event, if Mazzei’s testimony is believable, he stated that Poisella gave Kuhhorn a deadline of
Friday, August 29. If that was the case, Mazzei should have granted her request to do the re-run
on August 28, one day before the deadline.
Accordingly, it is clear that Kuhhorn did not refuse to do a dry run or refuse to return
phone calls as set forth in her termination papers. As set forth above, she offered to re-do the
dry run three times – with her grandson, in her own vehicle, and the following day, August 28.
She did not refuse to return phone calls because she was not at home to receive them. When
she finally returned home she retrieved the phone calls made to her and immediately followed
the Respondent’s order to report to the terminal at 6:00 a.m. on September 3 at which time she
was suspended.
Significantly, there was no evidence that any of the Respondent’s drivers at any of its
locations was disciplined for failing to do a dry run. I find and conclude that the Respondent has
not met its burden of proving that it would have discharged Kuhhorn even in the absence of her
union activities.

14 “A trier of fact … is not required to accept the entirety of a witness’ testimony, but may
believe some and not all of what a witness says.” TNT Skypak, Inc., 312 NLRB 1009 fn. 1
(1993).
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c. Pomella and Haskell
Cheatham and Mercado
As set forth above, Pomella and Haskell were early supporters and activists in behalf of
the Union. In mid August, Pomella was given blank authorization cards by Ebert outside the
facility, and Pomella asked permission of managers Calli and Mazzei to distribute the cards.
Mazzei prohibited her from doing so on company property. They both offered the cards to
drivers as they entered the facility. Mazzei stated that he believed that Pomella was blocking
buses and was told by her that she was handing out Union literature. In addition, on September
24, Mazzei told her that he did not want her to talk to her co-workers on company property.
Although Mazzei denied knowing about Haskell’s union activities, I credit the testimony
of Pomella and Haskell that they both distributed Union cards and handbilled the drivers, and
that they stood together when Pomella informed the two managers that they would be handing
out literature. Mazzei conceded seeing Haskell about 50 feet away from Pomella when she
stood near the facility’s entrance as the buses entered. I credit Wolven’s testimony that Mazzei
told her several times before their discharge that they were the “biggest Union supporters” – that
they were speaking to workers about the Union and that Pomella wanted to be the shop
stewardess and that “we had to get rid of them.”
Based on their activities in behalf of the Union and Mazzei’s animus toward them as
active supporters of the Union, I find that the General Counsel has established that the
discharges of Pomella and Haskell were motivated by their activities in behalf of the Union.
Cheatham and Mercado worked without incident from November, 2008 until June, 2009
when, on June 19, Union agent Ebert wrote to the Respondent identifying Cheatham as a
member of the Union’s Contract Committee. Wolven stated that when Mazzei received the letter
he said that she was the “rat, and that she would have to go now.” At about the same time,
Mercado accepted a Union flyer in front of the premises and I credit her testimony that a few
days later was asked by Mazzei whether she agreed with the Union.
The four employees were terminated for failing to immediately report an incident on the
bus to the dispatcher. In the case of Pomella and Haskell, that a child fell on the bus, and
regarding Cheatham and Mercado, that a child reported that he could not breathe.
d. The Respondent’s Defenses
Because Pomella and Haskell, and Cheatham and Mercado were discharged for the
same reason I will discuss the Respondent’s defenses to their discharges together.
The Respondent’s valid rule requires that any incident, no matter how minor, be reported
immediately to the dispatcher. Wolven testified to the issuance of a memo to this effect on
August 29, 2008 and training sessions were held concerning it. Notwithstanding that Pomella
and Haskell may not have been at work on the day the memo was issued, I find that they could
have or should have been aware of this rule. Other employees such as Bartula and Blanton
were aware of the rule.
The significant question presented is whether the four employees would have been
discharged for violating this rule. As set forth above, the Respondent may have a good reason
for discharge, but was it the real reason? It must show that it would have discharged the four
workers for that reason.
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Assistant terminal manager Cuddy testified that the Respondent does not maintain
records of calls from drivers reporting incidents on their buses, although an extensive log is kept
whenever a driver calls to report such matters as a child was not going to school that day or the
bus is running late due to traffic.
According to Cuddy, the “Daily Parent Contact Log” is essentially used, as indicated on
the form, for instances of a bus being late, a child not gong to school or not appearing for the
bus, or if the parent calls that the child will not attend school that day. Thus, if a driver reports an
incident by radio it would not be reported on this log. Indeed, Cuddy stated that calls from
drivers reporting incidents are not reported on any document. There was one instance where
the dispatcher recorded that a driver called in and reported that a child was vomiting, and it was
written on the log. This should indicate that if a driver called in such an incident it would have
been reported. The absence of such written records of drivers calling in incidents is some
indication that drivers did not call in such incidents.
It is significant that the importance which the Respondent gives to this rule is not
supported by some means of recording whether drivers report incidents occurring on their
buses. Mazzei’s testimony that incidents involving injuries to children represent the “highest tier”
indicates that Respondent would have had a procedure whereby drivers’ reports of incidents
were recorded.
A number of incidents occurred on the Respondent’s buses in which children were hurt
or became ill, as follows, in chronological order. It should be noted that as to all the incidents set
forth below Cuddy was the dispatcher and would normally have received calls from the drivers
reporting the incidents if they called. She signed all the incident reports set forth below.
1. September 19, 2008 – G.C. Ex. 69. Driver Linda Frees’ report stated that the child
“slipped on step and slid down 2 steps.” She and the monitor checked him for marks and
found none. Cuddy did not testify concerning whether the driver called the dispatcher to
report the incident.
2. October 29, 2008 – G.C. Ex. 71. Driver Robert Crane’s incident report stated that the
child was crying on the bus. The driver and monitor observed a small mark on his
forehead and notified the child’s brother that they believed that the child fell asleep and
hit his head on the window. In her report to Servisair, Cuddy stated that “driver reported
incident to brother.” Cuddy did not testify concerning whether the driver called the
dispatcher to report the incident.
3. November 17, 2008 – G.C. Ex. 67. Driver Jacqueline Ellery’s report stated that the child
threw himself on the ground as he stepped on the bus, striking his head. The child’s
grandmother put him on the bus and the monitor had to prevent the child from throwing
himself down the stairs. Cuddy stated that “child was picked up and put into his seat.
Mother and grandmother were notified.” Cuddy did not testify concerning whether the
driver called the dispatcher to report the incident.
4. November 21, 2008 – G.C. Ex 65. Driver Howard Velazquez’ report stated that child hit
his head on the window, and the monitor comforted him. The school staff was notified.
No visible injury but child was crying. Cuddy wrote “comforted child and notified school.”
Cuddy did not testify concerning whether the driver called the dispatcher to report the
incident.
5. February 27, 2009 – G. C. Ex. 63. Driver Peter Cortes’ report stated that the child fell on
her knees while in the bus. The driver noted that she may have a bruise or scratch but
noticed no bleeding. Cuddy did not testify concerning whether the driver called the
dispatcher to report the incident.
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6. April 8, 2009 – G.C. Ex. 59. Driver Vincent Ellis’ report stated that the child bumped his
head on the window. The driver told the child’s mother what happened when he dropped
the child off at home. Cuddy testified that the driver called her at the time the incident
occurred when the child was on the bus.
7. May 8, 2009 – G.C. Ex. 57. Driver Peter Cortese’s report stated that the child threw
himself onto the floor of the bus and may have hit his head on the floor. He noted that he
gave the incident report to the dispatcher. Cuddy did not recall whether the driver called
to report this incident.
8. May 13, 2009 – G.C. Ex 56. A notation was made on the Daily Parent Contact Log by
dispatcher Cuddy that the driver called to report a child throwing up on the bus. Cuddy
recalled receiving the driver’s call.
9. May 13, 2009 – G.C. Ex. 55. Driver Arlene Green’s report stated that the child “fell onto
both knees” and that the driver “advised teacher taking her off the bus.” Cuddy who was
the dispatcher could not recall the incident and therefore could not recall whether the
driver called it in.
10. May 14, 2009 – G.C. Ex. 54. Driver Edward Guider’s report stated that while boarding
the bus, a child fell off the bottom step and onto the ground. The child did not appear to
have any marks or scars. He noted that the “action taken” was “wrote report.” Cuddy
testified that the driver called in the incident.
Significantly, it was stipulated that no written warnings or discipline were issued
regarding the incidents set forth in G.C. Exhibits 63-72, which would encompass the incidents of
September 19, 2008, October 29, 2008, November 17, 2008, November 21, 2008, and February
27, 2009, above. As to the other incidents set forth above, there was no evidence that any of
those drivers or monitors were issued discipline for the incidents involved therein.
Indeed, of the 54 drivers and monitors discharged during the period January, 2008 to
August, 2009 at the Middletown facility involved here, the only terminations for failing to call the
dispatcher regarding an incident on a bus were Pomella, Haskell, Cheatham and Mercado.15
Of the 407 drivers and monitors in all of the Respondent’s facilities except the
Middletown facility who were discharged from 2007 to October, 2009, none were listed as being
fired for failing to call the dispatcher regarding an incident on a bus.16
It should also be noted that none of the drivers involved in the above incidents were
among the 61 who signed cards for the Union. It may be that those drivers were hired after the
cards were solicited in August and September, 2008. But certainly Linda Frees, who circulated a
petition against the Union, was employed at the time of the Union campaign.
As set forth above, VMC agent Morales wrote that Mazzei asked VMC to disqualify
Cheatham and Mercado. It has not been shown that Mazzei had, in the past, sought the
disqualifications of any other employee. It is clear that in Mazzei’s zeal to discharge them he
sought the imprimatur of the VMC for their terminations even before it had made its final
recommendation. I do not credit Mazzei’s denial that he received the letter since Cuddy testified
that she received it and Poisella stated that Mazzei sent it to him. Nevertheless, VMC
recommended only that they be given a three-hour recertification class and returned to duty.
Similarly, it was recommended by VMC that Pomella and Haskell be suspended from

15 R. Ex. 37.
16 R. Exs. 26, 27.
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their duties for one to three days and that they also be permanently reassigned to another run.
Wolven supplied the Respondent’s reason for not following VMC’s recommendation:
Mazzei would not reassign them or put them on another run. He wanted them out. The
Respondent’s reason was that it had a “higher standard” than VMC’s. That may be true, but the
Respondent has not proven that it had disregarded VMC’s recommendations in the past.
The Respondent’s records show that in the period January, 2008 to April, 2009, there
had been only two disqualifications of employees by VMC, that of driver William Canty and his
monitor Melva Simmons who, in January, 2009, dropped off a child to an unauthorized adult,
resulting in the child being missing for one hour and the police being called.17 It must be noted
that in the memo disqualifying Canty and Simmons, the VMC official stated that they were
ineligible to work on any of Acme’s runs. Here, in contrast, the VMC official recommended only
a recertification class, and reassignment for the drivers and monitors involved.
In addition, although Mazzei called the two incidents the highest tier of violation, VMC,
which had responsibility for the oversight of Acme’s contract and whose first concern was the
children serviced by the Employer, did not recommend termination.
Furthermore, the Respondent did not use its progressive discipline program with the four
employees it terminated. Mazzei agreed with the Employer’s handbook statement that “the main
purpose of any disciplinary action is to correct the problem and attempt to prevent recurrence”
and that “by using progressive discipline, we anticipate that most conduct or job performance
issues can be corrected at an early stage, benefitting the employee and the Company.” The
Respondent’s progressive discipline policy is outlined as verbal warning, written warning,
suspension or termination – “depending on the severity of the problem and the number of
occurrences. There may be circumstances when one or more steps are bypassed.”
The “Termination of Employment” section of the handbook lists examples of conduct for
which an employee may be summarily terminated, such as positive testing for controlled
substances, conviction of a felony for a drug or alcohol related matter, and any conduct listed
under “prohibited employee conduct” which includes drug or alcohol related activities. The
handbook notes that “Baumann will attempt to address these issues through Progressive
Discipline. However, Baumann reserves the right to immediately terminate the employment of
an employee without prior notice in situations involving gross misconduct.” Mazzei explained
that certain cases involving discipline may be resolved through progressive discipline. For
example, if an employee is late, she is given a verbal warning. If she is late again, a written
warning. If lateness continues, further discipline, including suspension and termination may
result.
The incidents involving Linda and Justin, where (a) no serious harm was done to either
child (b) teachers’ aides and the caregiver were notified immediately of the incident (c) incident
reports were filed when the employees returned to the facility, and (d) VMC was timely notified
of the incidents, seem to be appropriate for the application of the progressive discipline policy
and not termination. As set forth above, the policy’s purpose is to “correct the problem and
prevent recurrence.” Such a policy would seem to be consistent with VMC’s recommendation
for a training class and reassignment to a different route.
I accordingly find and conclude that the Respondent has not proven that it would have

17 R. Ex. 37.
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discharged Pomella and Haskell, and Cheatham and Mercado in the absence of their union
activities. Wright Line, above.
D. The Request for a Bargaining Order
The complaint alleges that based on the seriousness of the alleged unfair labor practices
committed by the Respondent, the possibility of conducing a fair election is slight. Accordingly,
the General Counsel requested that a bargaining order be issued against the Respondent.
1. The Appropriate Unit
The complaint alleges and the Respondent denies, that the appropriate unit includes all
full-time and regular part-time drivers and monitors employed at the Middletown facility,
excluding all other employees, including mechanics and guards. The Respondent asserts that
the mechanics and the maintenance employee should be included in the unit.
The Union’s letter requesting recognition did not set forth the requested unit. The petition
for representation filed by the Union on February 5, 2009, requested a unit of “all drivers and
monitors.”18 Ebert stated that all of the Union’s contracts with school bus employers include
drivers and monitors, but that some of them include mechanics and maintenance employees.
Mazzei as the terminal manager is responsible for discipline to all employees at the
terminal, including drivers, monitors, mechanics and the maintenance worker. However,
Employer official Poisella stated that the mechanics receive their day to day supervision from a
shop supervisor who works in the terminal.
Kuhhorn stated that she interacted with the mechanics only if there was something
wrong with the bus. For example, if she complained that the bus was making a noise, the
mechanics asked her what the noise sounded like. She had no interaction with the one
maintenance employee who worked at the facility. Assistant terminal manager Cuddy testified
that the mechanics, who have a commercial driver’s license and the maintenance employee,
who does not have such a license, work in the garage for the most part, and that neither the
mechanics nor the maintenance worker generally ride on the buses. However, a mechanic may
occasionally drive a route if the Employer is short of drivers, and the maintenance employee
may occasionally work as a monitor if a monitor was needed.
Mazzei stated that the Employer does not maintain records showing the percentage of
time the mechanics worked as drivers or the percentage of time that the maintenance employee
worked as a monitor. He noted that on one occasion a driver became a mechanic.
Mazzei stated that the Employer’s handbook, rules and procedure apply to all its
employees regardless of their job duties. Further, all of the company’s benefits apply to all
employees except its policy regarding “snow days.” When schools are closed due to inclement
weather, the drivers and monitors do not report to work, but are paid for the day. However, the
maintenance employee and mechanics report to work on such days. All employees receive the
same holidays, sick days, and health insurance benefits.
Mechanics have two areas in which they can take a break. One is the general break

18 Case No. 2-RC-23360. On February 11, the Union requested that the petition be blocked
by the pending charges.
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area in the drivers’’ room which the drivers, monitors and mechanics use.
The Board has long held that although the Act requires a unit for bargaining to be an
appropriate unit, it does not require that the unit be the most appropriate unit. Positive Electrical
Enterprises, Inc., 345 NLRB 1,1, fn. 1 (2005); Bartlett Collins Co., 334 NLRB 484, 484 (2001).
The Board has found a unit of school bus drivers and monitors to be an appropriate unit.
New Britain Transportation Co., 330 NLRB 397, 397 (1999); Galloway School Lines, 321 NLRB
1422, 1428 (1996), where the unit found specifically excluded the mechanics.
I reject the Employer’s contention that the mechanics and the maintenance employee
should be included in the unit of drivers and monitors. Although there is a similarity of benefits
and overall supervision by terminal manager Mazzei, and all employees are subject to the
handbook’s provisions, there are significant differences in the working conditions of the drivers
and monitors as compared to the mechanics and the maintenance employee.
Thus, the mechanics are separately supervised by a shop supervisor, there is no
evidence as to the frequency with which the mechanics work as drivers, or as to how often the
maintenance employee works as a monitor, the only contact between the drivers and the
mechanics is when the driver reports a problem with her bus to the mechanic, and there was no
evidence as to the frequency of such complaints, their work situs remains separate – with the
drivers and monitors working in their buses and the mechanics working in the garage and the
maintenance worker performing his duties in the facility generally.
Accordingly, I cannot find that a community of interest between the drivers and monitors
exists with the mechanics and the maintenance employee sufficient to include the mechanics
and the maintenance employee in a unit of drivers and monitors.
2. The Union’s Majority Status
a. The Cards
I granted the General Counsel’s request that I authenticate the signatures on the
authorization cards by comparing the signatures thereon with signatures from employees’
employment applications and W-4 forms. Counsel for the Respondent objected to this
procedure. “The Board has long held, consistent with Section 901(b)(3) of the Federal Rules of
Evidence, that a judge or a handwriting expert may determine the genuineness of signatures on
authorization cards by comparing them to W-4 forms in the employer’s records.” Parts Depot,
Inc., 332 NLRB 670, 674 (2000).
I have carefully compared the signatures on the authorization cards to the known
exemplars from the Respondent’s records, specifically the signatures on the employees’
employment applications and W-4 forms. I find that the signatures on all 61 authorization cards
compare favorably with their employment applications and W-4 forms, and that those signatures
are genuine and authentic.
b. The Union’s Majority Status
The complaint alleges that on about September16, 2008, when the Union made its
request for recognition, the Union represented a majority of the drivers and monitors.
A payroll list containing the names of drivers and monitors, the appropriate bargaining
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unit, employed during the payroll period September 14 to September 20, 2008 was received in
evidence. That list contains the names of 112 employees. I must add Penny Kuhhorn to that
number. She was discharged in August and therefore was not on the September payroll list.
However, as I have found that she was unlawfully discharged, she remains a statutory
employee. Accordingly, the Employer employed 113 workers in the appropriate payroll period.
Sixty-one signed authorization cards were received in evidence.19 However, of the 113
employees on the payroll list, only 54 signed cards for the Union20, less than a majority of the
unit employees employed on that date. No contrary proof has been presented.21
I accordingly find and conclude that the Union did not represent a majority of the
employees employed in an appropriate bargaining unit on about September 16, 2008 when it
made a demand for recognition, and I therefore dismiss that allegation of the complaint which
requests that a bargaining order be issued against the Respondent.
Conclusions of Law
1. By promulgating and maintaining a rule prohibiting employees from discussing the
Union at work, the Respondent violated Section 8(a)(1) of the Act.
2. By promulgating and maintaining a rule prohibiting union solicitations and distributions
on employer property, the Respondent violated Section 8(a)(1) of the Act.
3. By creating the impression that Union meetings were under surveillance, the
Respondent violated Section 8(a)(1) of the Act.
4. By interrogating employees about their union activities and the union activities of other
employees the Respondent violated Section 8(a)(1) of the Act.
5. By interrogating employees without providing them with the assurances set forth in
Johnnie’s Poultry, 146 NLRB 770 (1964), the Respondent violated Section 8(a)(1) of the Act.
6. By subjecting employees to closer scrutiny in retaliation for their support of the Union
the Respondent violated Section 8(a)(1) of the Act.

19 Teannee Alves, Lorna Aguilar, Veronica Anglero, Sandra Armato, Richard Azar, Nilsa
Barreto, Tammy Bartula, Eugene Blanton, Shanae Britt, Linda Brown, William Canty, Daphne
Carman, Susan Carroll, Patrick Casale, Lola Cast, Jennifer Cawein, Tina Clayborne, Donna
Consolo, Mary De Sousa, Thomas Greak, Carola Greiser, Christopher Hagelmann, Eileen
Haskell, Donald Helms, Jerri Henry, Rosalina Hernandez, Huber Irala, Pamela Jackson, Alisha
Jennings, Richard Jennings, Penny Kuhhorn, Barbara Lamphere, Donna Larli, Rebecca Long,
Walter McGrath, Gwendolyn Mikell, Lillian Mingolla, Rachael Mingolla, Wesley Morse, Joseph
Ulrich, Farrel Palazzo, Catherine Pomella, Victor Reyes, Evelyn Rivera, Victoria Rogers,
Christopher Rudy, William Ruerup, Jackie Schelin, Gerald Schoonmaker, Melva Simmons,
Alamo-Quinones Siulhayly, Agnes Smith, Brigitte Stanley, Ann Stimus, Edward Tamburo,
Yonique Thompson, Barbara Walker, Christopher Weir, Debra Willard, Douglas Weber, and
Sharon Zanelli.
20 Aside from Kuhhorn, card signers Britt, Jackson, McGrath, Morse, Thompson, and Walker
were not on the payroll list.
21 The Respondent presented this argument in its brief. The General Counsel did not rebut it
in any way – either by reply brief or offer to reopen the hearing.
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7. By discharging its employees Miosotis Mieses, Penny Kuhhorn, Eileen Haskell,
Catherine Pomella, Roberta Cheatham and Paula Mercado, the Respondent Violated Section
8(a)(3) of the Act.
The Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent having discriminatorily discharged employees, it must offer them
reinstatement and make them whole for any loss of earnings and other benefits, computed on a
quarterly basis from date of discharge to date of proper offer of reinstatement, less any net
interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as
computed in New Horizons for the Retarded, 283 NLRB 1173 (1987).
In the complaint, the General Counsel seeks interest computed on a compounded,
quarterly basis for any backpay or other monetary awards. I deny the General Counsel's
request as that is not the current law. Cox Ohio Publishing, 354 NLRG No. 32, slip op. at fn. 5
(2009); Glen Rock Ham, 352 NLRB 516, 516 fn. 1. (2008), citing Rogers Corp., 344 NLRB 504
(2005).
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended22
ORDER
The Respondent, Acme Bus Corporation, Middletown, NY, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Promulgating and maintaining a rule prohibiting employees from discussing the
Union at work.
(b) Promulgating and maintaining a rule prohibiting union solicitations and distributions
on employer property.
(c) Creating the impression that Union meetings were under surveillance.
(d) Coercively interrogating any employee about his or her union support or union
activities or the union support or union activities of any other employees.
(e) Interrogating employees without providing them with the assurances set forth in
Johnnie’s Poultry, 146 NLRB 770 (1964).

22 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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(f) Subjecting employees to closer scrutiny in retaliation for their support of the Union.
(g) Discharging or otherwise discriminating against any employee for supporting
International Brotherhood of Teamsters, Local 445, or any other union.
(h) In any like or related manner interfering with, restraining, 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) Within 14 days from the date of the Board’s Order, offer Penny Kuhhorn, Eileen
Haskell, Catherine Pomella, Roberta Cheatham and Paula Mercado full reinstatement to their
former jobs or, if those jobs no longer exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privileges previously enjoyed. It appears that
Miosotis Mieses was offered unconditional reinstatement by letter of June 10, 2009. Any issues
relating to the validity of that offer may be raised in the Compliance part of this proceeding.
(b) Make Miosotis Mieses, Penny Kuhhorn, Eileen Haskell, Catherine Pomella, Roberta
Cheatham and Paula Mercado whole for any loss of earnings and other benefits suffered as a
result of the discrimination against them, in the manner set forth in the remedy section of the
decision.
(c) Within 14 days from the date of the Board’s Order, remove from its files any
reference to the unlawful discharges, and within 3 days thereafter notify the employees in
writing that this has been done and that the discharges will not be used against them in any
way.
(d) 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 designated by the
Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay due under the terms of this
Order.
(e) Within 14 days after service by the Region, post at its facility in Middletown, NY,
copies of the attached notice marked “Appendix.”23 Copies of the notice, on forms provided by
the Regional Director for Region 2, after being signed by the Respondent’s authorized
representative, 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.
Reasonable 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 pendency of these
proceedings, the Respondent has gone out of business or closed the 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
August 15, 2008.

23 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.”
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(f) 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
the Respondent has taken to comply.
(g) IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.
Dated, Washington, D.C., February 9, 2010.
____________________
Steven Davis
Administrative Law Judge
JD(NY)-02-10
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT promulgate and maintain a rule prohibiting employees from discussing
International Brotherhood of Teamsters, Local 445, or any other union, at work.
WE WILL NOT promulgate and maintain a rule prohibiting union solicitations and distributions
on employer property.
WE WILL NOT create the impression that Union meetings were under surveillance.
WE WILL NOT coercively question you about your union support or activities, or about the union
support or union activities of any other employees.
WE WILL NOT question employees without providing them with the assurances set forth in
Johnnie’s Poultry, 146 NLRB 770 (1964).
WE WILL NOT subject you to closer scrutiny in retaliation for your support of the Union.
WE WILL NOT discharge or otherwise discriminate against any of you for supporting
International Brotherhood of Teamsters, Local 445, or any other union.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL within 14 days from the date of the Board’s Order, offer Penny Kuhhorn, Eileen
Haskell, Catherine Pomella, Roberta Cheatham and Paula Mercado full reinstatement to their
former jobs or, if those jobs no longer exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privileges previously enjoyed. It appears that
Miosotis Mieses was offered reinstatement by letter of June 10, 2009.
WE WILL make Miosotis Mieses, Penny Kuhhorn, Eileen Haskell, Catherine Pomella, Roberta
Cheatham and Paula Mercado whole for any loss of earnings and other benefits resulting from
their discharge, less any net interim earnings plus interest.
JD(NY)-02-10
WE WILL within 14 days from the date of the Board’s Order, remove from its files any reference
to the unlawful discharges of Miosotis Mieses, Penny Kuhhorn, Eileen Haskell, Catherine
Pomella, Roberta Cheatham and Paula Mercado, and WE WILL, within 3 days thereafter notify
each of them in writing that this has been done and that the discharges will not be used against
them in any way.
ACME BUS CORPORATION
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
26 Federal Plaza, Federal Building, Room 3614
New York, New York 10278-0104
Hours: 8:45 a.m. to 5:15 p.m.
212-264-0300.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 212-264-0346.