First Student, Inc.

National Labor Relations Board - Administrative Judge Opinions

Feb 4, 2009

03-CA-026811 (N.L.R.B. Feb. 4, 2009)

JD(NY)–06-09
Catskill, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
FIRST STUDENT, INC.
and Case No. 3-CA-26811
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, LOCAL 294
Alfred Norek, Esq., Counsel for the General Counsel.
Thomas Walsh, Esq., Jackson, Lewis, LLP, Counsel for the Respondent.
DECISION
Statement of the Case
Joel P. Biblowitz, Administrative Law Judge: This case was heard by me on
December 16, 20081 in Albany, New York. The Complaint herein, which issued on October 22,
and was based upon an unfair labor practice charge and an amended charge that were filed on
August 13 and September 17 by International Brotherhood Of Teamsters, Local 294, herein
called the Union, alleges that on about July 28, First Student, Inc., herein called Respondent,
unilaterally changed the existing practice and policy regarding the assignment of light duty work
to employees with physical restrictions and, as a result, suspended the employment of Roger
Zeller on July 28, and terminated Zeller on August 15, in violation of Section 8(a)(1)(5) of the
Act.
Findings of Fact
I. Jurisdiction
Respondent admits, and I find, that it has been engaged in commerce within the
meaning of Section 2(2), (6) and (7) of the Act.
II. Labor Organization Status
Respondent admits, and I find, that the Union has been a labor organization within the
meaning of Section 2(5) of the Act.
III. The Facts
The unit involved herein, and admitted to be an appropriate unit, is all full-time and
regular part-time mechanics employed by the Respondent at its facility located in Catskill, New
York, herein called the facility, excluding office clerical employees, managers, guards and all
professional employees and supervisors as defined in the Act. Pursuant to an election
conducted on October 24, 2007, the Union was certified as the exclusive collective bargaining
representative of this unit on November 5, 2007. On October 1, 2007 there was a transfer of

1 Unless indicated otherwise, all dates referred to herein relate to the year 2008.
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ownership of the facility, as well as other facilities owned and operated by Laidlaw Transit, Inc.,
herein called Laidlaw, from Laidlaw to the Respondent. Subsequent to this purchase, the
Respondent agreed to honor the Board’s certification. Respondent and the Union agreed to
defer bargaining until May 6, although it did not actually begin until September 9; an agreement
was reached on September 30 and was ratified on October 7. Prior to the negotiations, the
parties exchanged proposals. The Respondent’s proposals for maintenance technicians lists
twelve “Job Responsibilities” the last of which is “Performs all other duties as assigned.” In
addition, “Job qualifications” includes: “Must be able to work in a crouched position or on back
lying on mechanic’s dolly beneath motor vehicle equipment; subjected to dust, dirt, and grease
conditions.” The Union’s proposals did not include the subject of light duty; Rocco Losavio,
Union business agent, testified that he didn’t feel that it was necessary because he was under
the impression that it was a long standing practice to accommodate employees with light duty,
when needed.
Zeller began his employment with Laidlaw as a mechanic in 1994. After transferring to
other facilities of Laidlaw, in about 2002 he was transferred to the facility where he was
employed as the lead mechanic until his termination on August 15. He was one of three
mechanics; there was also a foreman. The work of the unit employees at the facility involves
mechanical repairs and maintenance of the approximately forty school buses and vans that are
operated out of the facility, which is a garage containing six separate bays for the buses, one of
which is a “pit” for observing, and working on, the underside of the vehicle. The other five bays
are flat bays which allow the mechanics to work around and above, but not below, the vehicle.
There are a number of operations performed by the mechanics at the facility. A-Service work
refers to maintenance work performed on all of the Respondent’s (and Laidlaw’s vehicles
previously) vehicles after a certain number of miles driven or time since the last A-Service
inspection. It usually involves bringing the vehicle to the pit, where it is inspected top and bottom
to determine whether any repairs are needed. Transmission service is also performed over the
pit on a time or mileage basis. B-Service work is performed in any of the other five bays. In this
service, parts, such as the wheels and brakes pads, are removed and inspected to determine
whether they need replacements. Zeller’s regular work hours were 6:00 a.m. to 2:30 p.m., but
he usually worked about 2 ½ hours of overtime daily. In February, Zeller was asked if he would
be interested in taking the foreman’s position at the facility. He agreed to the new position with
the understanding that if he didn’t like the job, he could return to his lead mechanic position
without the loss of benefits, and the Respondent agreed. He began working as foreman in
March, remained in that position until mid-May, when he informed the Respondent that he was
not happy in that position, and he returned to his prior job.
In October 2004, Zeller injured his right shoulder while at work and, as a result, was
absent from work for about six weeks, during which period he collected Workmen’s
Compensation for the injury. The orthopedist who was treating him determined that the injury
was unrepairable and evaluated him on May 12, 2005 for an “alternative work assignment” and
“No overhead lifting.” As a result, when he returned to work, Laidlaw put him on light duty. In
that regard, he was able to perform most of the A-Service work, but was not able to perform any
work that required carrying or lifting heavy objects. He was also able to perform auto-body work
and replace the seats or seat covers on the buses. There were some jobs, such as repairing or
replacing transmissions, where he could not perform the work on his own, but would assist one
of the other mechanics performing the job. Shortly thereafter, Laidlaw asked him for another
medical evaluation and this one, dated July 21, 2005, from the same orthopedist, states that
there are no restrictions on what work he can perform; however, he continued to perform only
light duty.
On April 12, 2007, while at home, Zeller fell off a ladder and landed on his left shoulder,
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and was unable to return to work for six months. When he returned, Laidlaw again asked him for
a doctor’s evaluation, and the orthopedist completed an evaluation dated September 18, 2007
that states: “Return to light duty on 9/19/07.” When he returned to work at that time, he returned
to the light duty that he had been performing since his Workmen’s Compensation injury. He
testified that his work assignments did not change from the time of his initial injury in 2004 to
July 28, except that after his 2007 injury, he was not allowed to drive a school bus, which he
had done previously, three or four days a week when needed, for about an hour a day.
In mid-May, when Zeller left his position as foreman to return to being a mechanic, Dave
Carmen, who had been a mechanic at the facility for about six years, became the foreman. On
July 28, Carmen approached him at about 6:00 a.m. and told him that he received a call from
someone named “Frank,” from Respondent’s management, saying that Zeller should be
assigned to perform a B-Service on a big bus. Zeller testified that this was the first time that he
was given a job assignment that came from someone other than his foreman and told Carmen
that he knew that Zeller was not supposed to perform that work and that the Respondent had
his doctor’s letters spelling out the restrictions in the work that he could perform. Carmen said
that they did not have the doctor’s letters and Zeller said that he had the paperwork at home
and if Carmen wanted it, he could get it for him. When Carmen said that he did, Zeller went
home and gave Carmen the orthopedist’s letters, and returned to his regular, and restricted,
jobs. On the following morning, Carmen approached him again and gave him an evaluation
sheet of the Respondent to be completed by his orthopedist. Zeller then went to his orthopedist
for an examination and returned with the form dated August 4. For the different forms of activity
involved with the job, the doctor wrote: “If he can’t do it safely, then he should not do it.” He also
wrote that Zeller should not carry or lift anything heavier than fifty pounds, that there should be
no overhead lifting, and that the restrictions are not temporary. Copies of this evaluation were
given to Carmen and Dawn Kavanagh, Respondent’s Contract Manager. After that, Zeller
attempted to return to work on several occasions, but on each occasion, Carmen told him that
“corporate” told him that he should not allow Zeller to return until they made a decision on his
situation. On August 15, Zeller was given a letter from Kavanagh entitled: “Administrative
Discharge,” stating, inter alia:
An employee who has a disability or illness, whether temporary or permanent, and is
capable of performing the essential functions of the job, will be provided with reasonable
accommodation to assist their performance of the required work, in a safe and efficient
manner.
During recent months, you have had a medical issue with the potential of affecting your
job performance. For this reason, we asked that you request your medical provider to
complete a medical information form, providing the detail regarding any possible
limitations, or accommodations needed. This information has now been provided and
given very serious consideration. Based on all information available at this time, it is First
Student’s understanding that you are unable to perform the essential functions of your
job, with or without a reasonable accommodation, and that your condition is not
expected to improve. For this reason, your employment with First Student will be
administratively terminated.
If sometime in the future your condition permits you to resume your work duties at First
Student, you may of course apply for re-employment.
Zeller testified that prior to July 28 neither Laidlaw nor the Respondent had ever
expressed concerns about his ability to work or that his work limitations were affecting the
performance of the other mechanics, nor did they ever express any concerns about his physical
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restrictions. Losavio testified that prior to the receipt of the Respondent’s contract proposals, the
Respondent had not told the Union that it had any concerns about the work performance of
Zeller or any other employee, nor had the Respondent expressed concerns about
accommodating restrictions on the work being performed by Zeller or the nature of the work
assignments given to Zeller. The first that the Union learned of Zeller’s termination was from
Zeller; there was no prior notification from the Respondent. The Respondent never notified the
Union that Zeller’s work restrictions were causing problems in its operation, nor did the
Respondent ever offer to bargain with the Union concerning the change in its practice of
accommodating Zeller with respect to his job responsibilities.
D’Anna Soehnge, who is employed by the Respondent as Director of Human Resources
for the Northeast Area, identified the Respondent’s National Employee Handbooks effective July
2007 and July 2008.2 They refer to a policy that Soehnge refers to as transitional duty, but the
handbooks refer to as Return to Work, and the 2007 and 2008 provisions are identical:
First Student maintains a commitment that employees injured on the job receive prompt
quality medical care and return to work in a productive transitional duty capacity as
quickly as they are medically able to do so.
Should you sustain an injury while on the job, you must take the following steps…
8. Return to a regular or temporary transitional duty position when it is offered and your
doctor allows it…
Transitional duty is a temporary process (up to 90 days) that allows employees to remain
productive in the workforce while they regain their full capacity during the recovery/
rehabilitation process. There are two types of transitional duties that allow for this
process:
1. Limited duty allows for an employee to work in their original job with some limitation.
2. Modified work allows for an employee to work a position other than their normal
position.
This return to work policy requires employees to:
return to work once they are medically allowed to do so, by a physician, to a job they are
capable of performing.
participate in this process to the best of their ability as a condition of employment.
Sign an Employee Responsibility Form which indicates that the employee has received
and understands this process.
Employees that choose to not participate in this process will subject themselves to
disciplinary action, up to and including termination…
Soehnge testified that at the end of the 2007-2008 school year, when preparing their budgets
for the following school year, there was an indication that the Respondent needed to hire an
additional mechanic at the facility even though they already employed three mechanics at that
facility. She also determined that Zeller’s “status was very unclear” in that although they were

2 There is no evidence that these handbooks were distributed to the Union or to the
mechanics at the facility.
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aware that he was on restricted duty, they could not document what the restrictions were and
whether it was a personal injury or if he was on Workmen’s Comp. When she learned that it was
not Workmen’s Comp, she instructed Kavanaugh to give Zeller an Injury Prevention Form to be
completed by his doctor. Zeller returned it to Kavanaugh, who faxed it to Soehnge and after
receiving this form, she authorized Kavanaugh to send the August 15 termination letter to Zeller.
She testified that after receiving the form completed by his orthopedist, the Respondent decided
to terminate him because he was “…unable to perform the essential functions of his job and
that we were going to terminate him administratively—an administrative termination which in our
language means no fault, this isn’t a performance issue.”
IV. Analysis
It is alleged that on about July 28, the Respondent unilaterally changed its existing
practice and policy regarding the assignment of light duty work to employees with physical
restrictions and, as a result of this alleged change, the Respondent suspended Zeller on July 28
and terminated him on August 15 in violation of Section 8(a)(1)(5) of the Act. This is solely a
unilateral change allegation; there is no allegation that this also violated Section 8(a)(3) of the
Act.
The Union was certified as the collective bargaining representative of the mechanics at
the facility on November 5, 2007, and the Respondent, which had purchased this and other
facilities of Laidlaw, the predecessor employer, agreed to honor the certification. The evidence
establishes that since late 2004 Zeller, who suffered a Workmen’s Comp injury in 2004 and a
non-work related injury in 2007, has been performing only light duty work with the approval of
Laidlaw and, later, the Respondent. It is also clear that since late in 2004 Laidlaw and (since
October 1, 2007) the Respondent have permitted Zeller to perform only light duty work at the
facility, and that the Respondent was aware of this situation and, apparently, had no problem
with Zeller’s work performance, or his limited work responsibilities, having offered him the
foreman job in February.
There can be little question that a restricted work schedule or light duty work is a
mandatory subject of bargaining. Jones Dairy Farm, 295 NLRB 113 (1989); Industria Lechera
De Puerto Rico, Inc., 344 NLRB 1075 (2005) and that this subject is a substantial and material
term and condition of employment. It certainly was for Zeller as it allowed him to continue
working at the facility despite his disabilities. Further, it is no defense for the Respondent that it
purchased the facility prior to the election. As the Board stated in Mackie Automotive Systems,
336 NLRB 347, 349 (2001): “It is well settled that an employer’s past practices prior to the
certification of a union as the exclusive collective bargaining representative of the employees do
not relieve the employer of the obligation to bargain with the certified union about the
subsequent implementation of those practices that entail changes in wages, hours, and other
terms and conditions of employment of unit employees.” Zeller had been allowed to perform
light duty work since 2004, and continued to perform this work for the Respondent until July 28,
and the change of ownership does not alter the legal obligations herein. Respondent also
defends that when it assumed the operation of the facility, its terms and conditions of
employment, including its transitional duty policy, kicked in and replaced Zeller’s light duty job
responsibilities. That would be true if, at that time, the Respondent presented the Union with
these work rules and offered to bargain about them. It did not do so, however. What the
Respondent did was to unilaterally notify Zeller that as of July 28 his light duty status was over,
and on July 15 he was terminated. In doing so, the Respondent violated Section 8(a)(1)(5) of
the Act.
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Conclusions of Law
1. The Respondent has been engaged in commerce within the meaning of Section 2(2),
(6) and (7) of the Act.
2. The Union has been a labor organization within the meaning of Section 2(5) of the
Act.
3. The Respondent violated Section 8(a)(1)(5) of the Act on about July 28, 2008 by
unilaterally changing its existing practice as regards the assignment of light duty work to
employees with physical restrictions resulting in the suspension of Roger Zeller on that day and
his termination on about August 15, 2008, also in violation of Section 8(a)(1)(5) of the Act.
The Remedy
Having found that the Respondent violated Section 8(a)(1)(5) of the Act by unilaterally
departing from its past practice of allowing employees with physical limitation to work light duty
schedules, which resulted in the suspension and termination of Zeller, I recommend that the
Respondent be ordered to rescind the change instituted on about July 28, 2008 and, upon
request of the Union, bargain in good faith on this subject. I also recommend that the
Respondent be ordered to offer Zeller immediate reinstatement to his former position of
employment or, if that position no longer exists, to a substantially equivalent position, and to
make him whole for any loss of earnings and other benefits that he suffered as a result of the
change, as set forth in F.W. Woolworth Co., 90 NLRB 289 (1050), along with interest as
computed in New Horizons for the Retarded, 289 NLRB 1173 (1987).
Upon the foregoing findings of fact, conclusions of law and the entire record, I hereby
issue the following recommended
ORDER3
The Respondent, First Student, Inc., its officers, agents, successors and assigns, shall:
1. Cease and desist from
(a) Unilaterally changing the terms and conditions of employment of its mechanics
employed at its Catskill, New York facility, without prior notice to, or bargaining with, the Union.
(b) Suspending or terminating employees pursuant to a unilateral change in the terms
and conditions of employment of its mechanics at the facility.
(c) In any like or related manner interfering with, restraining or coercing its employees in
the exercise of their rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act:

3 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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(a) Rescind the unilateral change made on about July 28, 2008 regarding light duty work
for employees with physical limitations, and notify the Union that it has done so and that, upon
request, it will bargain in good faith with the Union about this subject.
(b) Within 14 days from the date of this Order offer Zeller full reinstatement to his former
position or, if that position no longer exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privileges previously enjoyed.
(c) Make Zeller whole for any loss of earnings and other benefits suffered as a result of
his suspension and termination, in the manner set forth above in the Remedy section of this
Decision.
(d) Within 14 days from the date of the Board’s Order, remove from its files any
reference to the unlawful termination and discharge of Zeller, and within 3 days thereafter notify
Zeller and the Union, in writing, that this has been done and that the discharge will not be used
against him in any way.
(e) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place 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.
(f) Within 14 days after service by the Region, post at its facility in Catskill, New York,
copies of the attached notice marked “Appendix.”4 Copies of the notice, on forms provided by
the Regional Director for Region 3, 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
July 28, 2008.
(g) 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.
Dated, Washington, D.C., February 4, 2009.
_______________________________
Joel P. Biblowitz
Administrative Law Judge

4 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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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 unilaterally change the terms and conditions of employment of our mechanics at our
Catskill, New York facility, without first bargaining, or offering to bargain, with International Brotherhood of
Teamsters, Local 294 (“the Union”) and WE WILL NOT suspend, discharge or otherwise discriminate
against employees due to this unilateral change in the terms and conditions of their employment.
WE WILL NOT in any like or related manner interfere with, restrain or coerce you in the exercise of the
rights guaranteed to you by Section 7 of the Act.
WE WILL rescind the unilateral change that we made in the terms and conditions of employment of the
mechanics by eliminating light duty work for employees with physical limitations and WE WILL offer
Roger Zeller immediate and full reinstatement to his former job or, if that job no longer exists, to a
substantially equivalent position without loss of seniority or any other rights previously enjoyed and WE
WILL make him whole, with interest, for any loss of earnings or other benefits that he suffered.
WE WILL, within 14 days from the date of this Order, remove from our files any reference to the unlawful
suspension and discharge of Zeller, and WE WILL, within 3 days thereafter, notify him in writing that this
has been done and that the suspension and discharge will not be used against him in any way.
FIRST STUDENT, INC.
(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.
111 West Huron Street, Federal Building, Room 901
Buffalo, New York 14202-2387
Hours: 8:30 a.m. to 5 p.m.
716-551-4931.
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, 716-551-4946.