Gene's Bus Company

National Labor Relations Board - Administrative Judge Opinions

Mar 2, 2010

02-CA-038713 (N.L.R.B. Mar. 2, 2010)

JD(NY)–06–10
Ardsley, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
ARDSLEY BUS CORPORATION INC.,
a/k/a GENE’S BUS COMPANY
and Case Nos. 2-CA-38713
2-CA-39049
TRANSPORT WORKERS UNION OF 2-CA-39376
GREATER NEW YORK, LOCAL 100, AFL-CIO 2-CA-39467
Alan M. Rose, Esq. and Colleen
Breslin, Esq., Counsels for the
General Counsel
Anthony J. Pirrotti, Esq., Counsel
for the Respondent
Ursula Levelt, Esq., Counsel for
the Charging Party
DECISION
Statement of the Case
Raymond P. Green, Administrative Law Judge. I heard this case in New York City on
October 14, 15, 16, 19, 26, 27, 28 and November 30, 2009.
The charge and the amended charge in 2-CA-38713 were filed on March 27 and June
27, 2008. The charge and the amended charges in 2-CA-39049 were filed on November 24,
2008 and January 15, January 23, March 26, April 30, 2009 and May 29, 2009.
On June 30, 2009, the Regional Director issued a Consolidated Complaint in 2-CA-
38713 and 2-CA-39049. This Complaint made a number of allegations including allegations
that (a) the Respondent threatened employees with violence, (b) called the police because
union representatives engaged in union activities, (c) suspended union chairperson Cesar
Uchofen because of his union activities, (d) revoked his privilege of taking a van home and (e)
refused to furnish the Union with information regarding bus routes.
As to this Complaint, the Regional Director approved an informal settlement agreement,
executed by all parties, on August 12, 2008.1 This settlement required inter alia, that the
Respondent (a) revoke the suspension issued to Uchofen and make him whole for any losses
he suffered; (b) restore Uchofen’s privilege of taking a van home between his shifts; (c) furnish
the Union with certain information relating to seniority; (d) post a Notice to its employees; and
(e) refrain from engaging in any like or related conduct that would interfere with, restrain or
coerce employees in their Section 7 rights.

1 At the hearing Respondent’s counsel contended that the agreement, which is General Counsel
Exhibit 5, was not signed by the Union. This is not correct.
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The charge and the amended charge in 2-CA-39376 were filed on July 9 and August 20,
2009.
A Consolidated Complaint based on all three of the above named charges was issued
on September 11, 2009. Also, the Director ordered that that the Settlement described above be
revoked based on her belief that the Respondent was not in compliance with its terms.
Thereafter a new Complaint was issued on October 13, 2009 based on a charge in 2-
CA-39467 that was filed on August 31, 2009.2
The totality of the substantive allegations of all the Complaints can be summarized as
follows:
1. That on or about March 19, 2008, the Respondent, by Thomas Gillison, its General
Manager, threatened an employee with physical harm.
2. That on or about March 20 and 24, 2008, the Respondent by Thomas Gillison,
threatened to call and did call the police to remove union representatives who were engaged in
representation duties.
3. That on or about March 20, 2008, the Respondent, for illegal reasons, suspended
Cesar Uchofen and revoked his privilege of taking home a company van between his morning
and afternoon shifts.
4. That since on or about May 23, 2008, the Respondent has refused to furnish the
Union with a listing of routes open for bid for the summer of 2008 and information about the
dates, hours and pay routes for each summer route.
5. That on or about June 16, 2008, the Respondent, by Thomas Gillison, threatened an
employee, (Cesar Uchofen), with physical harm.
6. That between August 25 and August 28, 2008, the Respondent, for discriminatory
reasons, unilaterally and without affording the Union an opportunity to bargain and without the
Union’s consent, breached, in mid-term, the existing collective bargaining agreement by
refusing to post all available routes for employee bidding.
7. That since August 25, 2008 and continuing to date, the Respondent, for
discriminatory reasons, unilaterally and without affording the Union an opportunity to bargain
and without the Union’s consent, breached, in mid-term, the terms of the existing collective
bargaining agreement by refusing to assign regular, charter and extra routes in accordance with
seniority.
8. That on or about September 3, 2008, the Respondent (a) told an employee that it
was futile for the Union to bring grievances to it and (b) threatened an employee with
unspecified reprisals if he/she assisted the Union.
9. That in October 2008, the Respondent, by Tomas Gillison, threatened an employee
that it was withholding hours because of the Union.

2 This case was consolidated at the hearing.
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10. That since about October 24, 2008, the Respondent refused to furnish the following
information requested by the Union that was relevant to various grievances.
11. That since October 31, 2008, the Respondent, for discriminatory reasons,
unilaterally and without affording the Union an opportunity to bargain and without the Union’s
consent, breached in mid-term, the collective bargaining agreement by refusing to hold a Step 2
grievance meetings relating to unpaid wages.
12. That on or about November 25, 2008, the Respondent by Gillison, ridiculed and
threatened an employee with violence and kicked an employee.
13. That in December 2008, the Respondent by Gillison, threatened to withhold benefits
from employees unless they renounced the Union.
14. That in December 2008, the Respondent by Elisa Arias, its supervisor, threatened
that the Respondent would reduce hours and other benefits to employees known to associate
with the Union.
15. That in December 2008, the Respondent, by Gillison and other agents, bypassed
the Union and dealt directly with employees by (a) requiring employees to renounce the terms of
a grievance settlement negotiated pursuant to the collective bargaining agreement and (b)
requiring employees to sign an agreement affirming that they did not object to the Respondent’s
distribution of summer routes.
16. That on or about January 9, 2009, the Respondent, by Gillison, threatened an
employee with unspecified reprisals.
17. That on or about January 21, 2009, the Respondent, for discriminatory reasons,
discharged Cesar Uchofen.
18. That on or about May 8, 2009, the Respondent, by its attorney, interrogated
employees.
19. That since on or about May 21, 2009, the Respondent has failed to furnish to the
Union requested information that is relevant to collective bargaining.
20. That in late May and in June 2009, the Respondent by Alisa Arias and Rosa Villela,
interrogated employees regarding whether or not they signed a petition to decertify the Union.
21. That in relation to negotiations for a new contract starting in May 2009, the
Respondent refused to bargain in good faith by (a) conditioning its participation in negotiations
on the exclusion of Cesar Uchofen as a union representative; and (b) refused to consider the
Union’s proposals or submit its own proposals or schedule meetings unless and until it received
the Union’s proposals in writing.
22. That on June 22, 2009, the Respondent withdrew recognition from the Union.
23. That between August 24 and August 27, 2009, the Respondent unilaterally changed
the terms and conditions set forth in the collective bargaining agreement by refusing to allow
union representatives to participate in the bidding of routes by employees for regular school bus
routes.
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24. That on or about September 1, 2009, the Respondent unilaterally, and without
notification to or bargaining with the Union, changed certain of the existing terms and conditions
of its employees’ employment.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed, I make the following
Findings of Fact and Conclusions of Law
I. Jurisdiction
The Respondent asserts that the Board does not have jurisdiction because its
operations are wholly local in nature and therefore do not affect interstate commerce.
The Respondent is a New York corporation that operates a school bus business. It is
located in Ardsley, New York and for the most part, it performs services for various New York
State school districts, plus public and private schools in Westchester, New York. It admittedly
has annual gross revenues in excess of $10,000,000. It also has admitted that it has derived
revenue in excess of $4,000 for services provided outside the State of New York. I also note
that in a second commerce questionnaire submitted to the Regional Office by Respondent’s
owner, he indicated that the Company’s purchases of goods and materials delivered directly
from outside the State of New York, exceeded $50,000.
Based on the above, it is concluded that the Respondent is an employer engaged in
commerce and that its operations affect interstate commerce within the meaning of Section 2(2),
(6) and (7) of the Act. 3
I also find that the Union is a labor organization within the meaning of Section 2(5) of the
Act.
II. The Alleged Unfair Labor Practices
The allegations in these cases fall into three broad categories.
First are allegations involving Cesar Uchofen, a driver who was named by the Union as
an employee union representative.
Second are allegations concerning seniority clauses and practices. As described below,
the Company and the Union entered into a complete collective bargaining agreement in 2000
and have executed subsequent supplemental memoranda of agreements, the last having an
expiration date of June 30, 2009. There is no question but that these agreements, taken
together, contain provisions governing seniority, not only for layoffs and recalls, but also in
relation to the choosing and selection of routes. It is alleged (a) that the Respondent breached
or abrogated the relevant seniority provisions, thereby unilaterally modifying the collective
bargaining agreement and (b) that on several occasions, the Respondent failed and refused to
furnish to the Union requested information regarding its practices of assigning routes.

3 I note that the Respondent had made a Motion to the Board to dismiss the Complaint based on its
assertion that the Board did not have jurisdiction over its operations. This Motion was denied by Order
dated September 22, 2009.
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Thirdly, there are allegations concerning the negotiations in June 2009 for a new
contract. It is alleged that the Respondent (a) refused to furnish information that was relevant
for bargaining, (b) that the Respondent refused to meet and bargain with the Union’s designated
representatives, (c) that the Respondent agreed to meet for only one bargaining session and
thereafter refused to meet at all, (d) that the Respondent unlawfully withdrew recognition, and
(e) that the Respondent unlawfully made unilateral changes in terms and conditions of
employment after the last agreement’s expiration date.
In addition to the above major themes, there are a number of other allegations of
independent 8(a)(1) statements or conduct that are alleged to have occurred from the Autumn
of 2008 through the Spring of 2009.
Among other arguments, the Respondent contends that in or around May or June 2009,
a majority of the employees within the bargaining unit indicated their desire to get rid of the
Union and that it therefore could lawfully withdraw recognition and refuse to bargain at that time.
It also contends that any changes made after the last contract’s expiration date were lawful
because the Union no longer represented a majority of the employees and that having expired,
the last effective agreement’s terms, no longer were binding.
Because the allegations fall within these three categories, this Decision will discuss each
category separately and the reader is advised that I will not be following a strict chronological
order. Hopefully, this will allow the issues to be more clearly explicated.
I note here that on November 11, 2009, I issued an Order, granting in part and denying
in part, the General Counsel’s end of hearing Motion to Amend the Complaint. To the extent
that I have denied the General Counsel’s Motion to Amend, I will not discuss those allegations
in this Decision. However, my reasons for denying or granting those amendments are attached
hereto as Appendix A.
a. The Company’s Operations
The Respondent operates a school bus business which is located in Ardsley, New York.
The owner of the Company is Gideon Tiktin. The General Manager is Thomas Gillison.
The Company’s business involves essentially three types of activities all involving the
transportation of children. During the regular school year, (September through May), the
Company picks up and delivers children to their schools in the morning and returns them to their
homes in the afternoon. The routes for this type of work are the result of contracts with school
districts and private schools and the routes are pretty stable once they have been established
by the respective customer and the drivers and monitors have been assigned to each route.
The drivers and monitors are assigned to specific routes before the start of the school year and
typically do that route for the rest of the year. How drivers and monitors are or should be
selected to do their routes is an issue in this case and will be discussed later.
Also during the school year, the Company receives charter work. This typically is work
that would involve transporting children to after-school events such as school trips or athletic
events. Charters are usually received by the Company from a school during the week that the
charter routes have to be done. Therefore, this may involve some degree of scrambling to get a
driver and/or a monitor to do a particular job.
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Then there is summer work. The Company receives contracts from organizations such
as summer camps. As with regular school year routes, these are stable and drivers are
assigned to do specific summer routes. The assignment of these routes typically would take
place soon after the end of the regular school year.
The Company’s physical operations consist of three trailers that are used as offices and
a training facility. It also has a garage and a yard where buses and vans are kept. The
Company employs a group of drivers and a somewhat smaller group of school bus monitors.
Typically there would be somewhat in excess of 200 individuals who are employed as drivers
and monitors. Also in the bargaining unit is a small group of mechanics. In addition and
excluded from the bargaining unit, the Company employs a small group of office employees and
another group of about two or three dispatchers.
The dispatchers are people who are responsible for making sure that the routes are
covered and they are in constant touch with drivers via two way radios. For example, although
regular school year routes are established before the beginning of each school year, with the
drivers and monitors assigned to specific routes, there are occasions when substitutions and
changes have to be made at the last minute. A driver or monitor may be sick and a substitute
will have to be assigned to a route by a dispatcher. Or a school might cancel a route and this
might engender another change. Or a charter run may come into the office and a dispatcher, on
short notice, will have to find and assign a driver and/or monitor to do this work.
Other than dealing with the day to day shifting of people around when needed to fulfill
the needs of the routes, there is no evidence that dispatchers can hire or fire, direct the work of
employees, adjust grievances or engage in or recommend any of the other powers set forth in
Section 2(11) of the Act. The dispatchers are however, responsible for transmitting instructions
to the drivers from Mr. Gillison, who is the General Manager. To a limited extent, they may, in
certain limited circumstances, be construed as agents within the meaning of Section 2(13) of the
Act.
b. The Collective Bargaining Relationship
and Seniority Issues
The Company and the Union have had a collective bargaining relationship since at least
2000. I received into evidence a collective bargaining agreement that ran from September 1,
2000 to June 30, 2002. This was a complete collective bargaining agreement and the unit
consists of all full-time and regular part-time school bus and van drivers, monitors, mechanics,
cleaners and fuelers employed by the employer, but excluding all other employees including
office clericals and guards, professional employees and supervisors as defined in the National
Labor Relations Act. This contract contains a grievance/arbitration procedure and provisions
relating to seniority.
Because a number of significant allegations relate to whether or not the Respondent
unilaterally revoked an agreement regarding seniority practices and/or refused to furnish
relevant information regarding its seniority practices, the history of the contract provisions
relating to this subject is set forth below.
The initial contract, at Article 15, had a group of provisions relating to seniority. This
provides that the Company shall recognize terminal seniority rights from the employees first day
of work or date of transfer into the bargaining unit and that layoffs and recalls will be determined
by classification seniority. Article 15 also stated:
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d. The Employer will post a seniority list on the driver bulletin board.
e. All runs, holidays, vacations and extra work shall be picked by seniority.
Routes becoming vacant during the school year shall be subject to bid by
seniority and qualification.
In September 2002, the parties executed a two page Memorandum of Agreement. This
essentially was a four year extension that ran from July 1, 2002 through June 30, 2006. It was
signed on September 11, 2002 by Gideon Tiktin for the Company and Roger Toussaaint for the
Union. This document sets out various wage rates and wage increases for the term of the
contract. It also, at Paragraph 5, made some changes in the seniority provisions that had been
in underlying contract that was executed in 2000. This reads as follows:
Seniority lists shall be posted monthly. All runs open for bid must be posted and
picked by seniority. The picks shall include Bus Operators, Van Operators and
Monitors. Schedules shall include hours of assignment. All extra work including
Charters, Summer Camp and Extra Runs must be posted and picked by seniority
and assigned by Union and Management representatives.
On October 6, 2003, the Union’s counsel sent to the Company a proposed full contract
covering the period from July 1, 2002 through June 30, 2006. This contained a new seniority
provision at Article 16 that incorporated certain seniority provisions contained in the original
contract plus the seniority modifications that were contained in the 2002 Memorandum of
Agreement. In relation to the selection of routes, this reads as follows:
(d) Seniority lists shall be posted monthly. All runs open for bid must be posted
and picked by seniority. The picks shall include Bus Operators, Van Operators
and Monitors. Schedules shall include hours of assignment. All extra work
including Charters, Summer Camp and Extra Runs must be posted and picked
by seniority and assigned by Union and Management representatives.
(e) All runs, holidays, vacations and extra work shall be picked by seniority.
Routes becoming vacant during the school year shall be subject to bid by
seniority. 4
Sometime later, Tiktin sent a copy of a full collective bargaining agreement to the Union
that contained a number of handwritten modifications. These changes did not, however, affect
the proposed Article 16 and I therefore assume that Tiktin did not, at that time, have any
disagreement with the way the Union wrote Article 16. In any event, neither party signed each
other’s proposed contract, although they lived with and under the terms that were agreed to in
the 2002-2006 Memorandum of Agreement.
On January 5, 2006, in preparation for negotiations for a new contract, a union lawyer
sent a letter containing a full collective bargaining agreement for the period from the 2002 to
2006. She stated:
Enclosed are two copies of the integrated collective bargaining agreement
incorporating the changes made in the last contract negotiations. Please sign
the agreements and return them to me. We will return a fully executed original

4 The proposed Article 16 (d) replaced the 2000 contract provision at Article 15 and the proposed 16
(e) retains the same language as 15 (e) the 2000 contract.
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to you when it is signed by the union. Although we have repeatedly requested
that you sign this agreement, you have not done so. If you do not sign the
agreement within ten days, we will be forced to file an unfair labor practice
charge against your company for failure to bargain in good faith.
By letter dated January 17, 2006, Tiktin indicated that he was willing to execute a full
collective bargaining agreement so long as it contained the corrections that he had proposed in
2003. Although reiterating his previous understanding of what had or had not been agreed to,
Tiktin did not make any objection to the way that Article 16 was written in the Union’s proposed
contract.
The testimony showed that there were five or six bargaining sessions from July through
October 2006 and that this ultimately resulted in another signed Memorandum of Agreement.
This new memorandum set forth new terms that would be effective from July 1, 2006 through
June 30, 2009. This document does not have anything in it relating to seniority although I think
that it is safe to conclude that the parties did not have any intention of completely abrogating the
other unmentioned terms of the underlying collective bargaining agreement, including the
grievance/arbitration provisions or the seniority provisions that had preceded the execution of
this new Memorandum of Agreement. Thus, on October 27, 2006, Tiktin sent a memo to a
union attorney that stated:
Enclosed is a signed copy of the Memorandum of Agreement. Are you going to
send us a new contract or just attach the Memorandum to the old contract?
Please advice.
Needless to say, the parties never got around to agreeing on the precise terms or
language for a new complete collective bargaining contract. So, like the situation from 2002-
2006, the parties operated from 2006 to 2009 under what they understood to be the terms of the
new Memorandum of Agreement.
As we shall see, matters started to deteriorate around 2007 and the situation went from
bad to worse. As of the time of this hearing, the Union and the Company had met on one day in
June 2009 to “negotiate” for a new contract. There have been no further negotiations because
the Company has withdrawn recognition. In this regard, the Company asserts that the Union
has lost its majority status and that this is demonstrated by a petition signed by a majority of its
unit employees indicating their desire to be rid of the Union. But this gets ahead of ourselves.
Everyone seems to agree that up until around 2007, there was a cooperative
relationship between the Union and the Company. However, the Union apparently feels that its
previous administration had a too cozy relationship with the employer. The Employer, for its
part, seems to feel that their relationship was good and that when disputes arose they could
reasonably be resolved through negotiation.
In any event, it is clear that the relationship between the Union and the Company
became much more confrontational starting around the fall of 2007. Thus, in a written
statement give by Gillison to the Regional Office, he stated inter alia;
Starting in September 2007, John Simino and several other union
representatives from outside the bus company have harassed management
personnel, employees and others. Some examples are:
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They told drivers that our buses are unsafe to drive, including ones that
just at that same time passed New York State Department of Transportation
inspections!
The union passed out misleading information to drivers, called school
districts with false reports and sent out untruthful fliers to parents.
On Christmas Eve, they came to the company and with a gas generator
blew up a balloon of a pig or rat…. and tied the owner’s name around its neck.
This was disrespectful racial gesture. 5
For seven years there were no problems between the company, the union
and the employees. Starting in September of 2007, these union personnel
mentioned here have made disrespectful accusations and created unrest. If the
union is trying to build a better relationship between employees, management
and themselves, the methods and tactics they are using don’t facilitate it.
In a pretrial affidavit, Gillison had the following to say about the Company’s relationship
to the Union:
Joe Ramos has been the Chairperson for all the years that the union has been
here and Ardsley has just had no problems with the Union. In September 2007,
the union just came in and walked over Ramos. They put in another chairperson
in or about September 2007, she was a monitor, and since then, we’ve had
problems with the Union. There was an issue with that monitor and back in
September, she accused me of swearing and yelling at her and during a meeting
John and I, the monitor lied and told John and I that I had sworn at her and
abused her. That wasn’t true… I told John at that point that since that employee
had been there for less than 2 months, I could fire her for the color of her hair. I
told John, I liked the color of her hair but that the employee was fired there. I
fired her right then and there for lying about me. Since then, the union has been
obstinate and difficult and they’ve been accusing me of talking to the union
representatives abusively. I think the Union wants me out because there are a
lot of employees her who don’t want the Union and John has told me that I need
to force them to be part of the union. That’s not my job – I just want to make sure
we are getting the job done. I don’t care about the Union one way or another.
Then around last December, the Union created a mess around some wages we
owed people, it ended up being about $25,000. They sent letters to parents and
to officials from Westchester County about some wages we owed – the Union
just made a big scene, they brought out a blown–up pig.
c. Allegations involving Cesar Uchofen
1. The events in March 2008
Uchofen had been employed as a van driver since January 5, 2007. Since early 2007,
pursuant to company policy, he was allowed to return to his home with the van between his
morning and afternoon runs. However, the Company’s policy has always been that drivers were
not permitted, without express approval, to use the company vehicles for personal use. Doing
so would be grounds for discharge.

5 For whatever it is worth, I note that Tiktin is Jewish and that the portrayal of Jews as rats was a
stereotype utilized by the Nazi regime in Germany.
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After Ramos was removed by the Union as the shop chairman, the Respondent was
notified by letter that Julie Rivera had been appointed as the new chair, that Cesar Uchofen had
been appointed as the vice chairman and that Yolanda Vergara was appointed as the recording
secretary. In April 2008, the Union appointed Cesar Uchofen as the shop chairman.
The evidence shows that in early March 2008, the Company’s manager, Tom Gillison,
received reports that Uchofen was using his van for his own personal use. Around March 17,
the Company received a summons relating to a parking ticket that been issued to the van driven
by Uchofen and this indicated that the address of the violation was neither near his home nor on
the route to which he had been assigned. Instead, it was at or near the Union’s offices in
Yonkers. Consequently, on March 17, Gillison requested that Uchofen come to his office but
Uchofen did not do so.
On Tuesday, March 18, Uchofen was told by Rose Villela that she had been instructed
by Gillison that Uchofen was no longer allowed to take the van home between shifts.
The General Counsel claims that on Wednesday, March 19, Gillison threatened Uchofen
with violence. However the evidence does not support that assertion. Uchofen testified that
after finishing his afternoon route, he spoke to Gillison and was directly told that he no longer
could bring his van home. According to Uchofen’s testimony, Gillison stated:
[B]ecause I am the … union person, you think you are smarter than me. You
don’t know who are you dealing. I am going to take all the shit from you. I say
you’re not supposed to talk like that to me. I come nice to talk to you. But,
[Gillison] try to say I am – I have the power here. I do whatever I want here. 6
In any event, on Thursday, March 20, Uchofen was suspended for that afternoon. The
evidence shows that union representative Simino agreed to accompany him to Gillison’s office
later in the day. In this regard, when Simino stated that he was there to represent Uchofen,
Gillison responded that he didn’t have time for them at that moment and that he wanted to meet
with Uchofen alone. When Uchofen and Simino refused to leave the office, Gillison said that he
would call the police. Before leaving, Simino said that he wanted to meet with Gillison to talk
about the suspension and Gillison said that he could return on Monday.
On Monday, March 24, Simino and Uchofen returned to Gillison’s office and Simino
stated that he wanted to have a “hearing” on the suspension. Gillison, for his part, insisted that
he wanted to talk to Uchofen alone and essentially refused to discuss the matter so long as
Simino was present. At an impasse, Gillison told them to leave and when they refused, he
called the police. Uchofen and Simino then stepped out of the office and when the police
arrived they explained that they were trying to have discussion with Gillison about a labor
management issue. After some more conversation Gillison told Uchofen that he was “out of
service.” Before leaving the yard, Simino left a copy of a grievance with company owner, Titkin.
By letter dated March 24, 2008, Gillison advised Uchofen that he was being given a five
day suspension.

6 The General Counsel points to an assertion in Uchofen’s affidavit to the affect that during this
conversation, Gillison stated; “ I’m going to squeeze the shit out of you.” I am not going to rely on this to
find that the Gillison threatened Uchofen with violence. For one thing, this out of court statement is
hearsay if offered by the General Counsel for the truth of the matter asserted. Secondly, it is contrary to
the record testimony of Uchofen at the hearing.
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With respect to his decision to suspend Uchofen, the Company asserts that this was
justified by its well founded belief that Uchofen had violated company policy prohibiting drivers
from using company vehicles for personal use.
In reviewing this record, Gillison may have had a legitimate beef with Uchofen in relation
to his belief that Uchofen had violated a clearly defined company policy. But I also conclude
that Gillison’s decision to suspend Uchofen was actually motivated by Uchofen’s decision to
seek representation from union agent Simino. This is, in fact, pretty much admitted by Gillison,
who gave an affidavit to a Board agent during the investigation of this charge. This stated in
pertinent part:
13. At around 1:15 on March 20, Cesar and the Union representative John
Simino came into my office. I was in the middle of reviewing the backpay figures
that the Union had told us we owed the employees whey they arrived.
[Apparently relating to another grievance]. John asked for a meeting right then
and there, no prior phone calls or anything. I told John that I would not stop what
I was doing and that they could see me the next day to discuss. Cesar was not
suspended at that time. I had said that I had summoned Cesar to my office that
morning to discuss it but he didn’t show. At that point, I had just intended on
reading him the riot act and let it go but he never showed up. I did not tell them
that I would meet with Cesar but not John. I just did not have the afternoon of
the 20th to meet them. I did ask John to leave my office on that day because I
had work to do and John was belligerent and refused to leave. I told him I
needed to call the police on him, and he still refused to leave. So I needed to call
the police and John stayed there until I did.
14. Once John had forced the issue of the meeting on the 20th and decided he
was going to run it his own way by demanding a meeting to discuss Cesar’s
discipline, I decided on that day that it would be a suspension. I didn’t tell Cesar
it would be suspension on that day, I just told them to come back the next day to
discuss it. Again, I had asked Cesar to meet with me on the morning of the 20th
to discuss the ticket and he didn’t show up – I wasn’t going to suspend him, just
going to read him the riot act and send him out again. It was when they
demanded this meeting that I decided to suspend him.
16. The following morning, on March 21st, John and Cesar came in to have a
meeting about the discipline. I had not informed Cesar of a suspension at this
point…. By that point, I had an Employee Disciplinary Notice (exhibit 2) and
Report (attached at Exhibit 3), both of which I wrote on the 21st before Cesar and
John came in and in those documents I informed Cesar of the suspension.
Basically what happened is that I decided on the suspension after John made it
clear he was going to do it his way. We all had a meeting with Gideon Titkin to
discuss the issue and I handed Cesar the Notice and Report. During this
meeting, John wanted to meet privately with Gideon and so everyone left the
room. Then Gideon called me to a meeting and he told me that John wanted me
to reduce the suspension from 5 to 2.5 days. I told Gideon I would give him 3
days and then John and I had a private meeting. I told John that it would be
three days and John told me that he knew Cesar had gotten the ticket and he
need to do something for his men, so he asked if we could reduce it to 2.5 days.
I told John I could not do that, I needed to keep it at three. John said then, when
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Gideon was back in the meeting that he would bring it to the Labor board and
Gideon said he needed to do what he needed to do.
17. On or about March 24, 2008, I wrote Cesar the letter attached at Exhibit 4.
In that letter, I was just reiterating my position that the suspension would last 5
days. I wanted to be clear that if John was going to hold his ground that it should
only be a 2.5 days suspension, Cesar was going to get the whole five days…. At
some point, John and Gideon did reach some deal that ended in Cesar being
suspended for only 2.5 days and I did go along with that. There’s no reason to
be in a long battle. I’m not crazy about suspending people because I need the
drivers. Cesar only ended up being suspended for 2.5 days.
There is little doubt that Gillison’s decision to suspend Uchofen, instead of dressing him
down, was actually motivated by the fact that Uchofen sought to be represented by a union
representative. Moreover, instead of allowing Uchofen to have a union representative present
in circumstances where Uchofen had reason to believe that he would be subject to disciplinary
action, Gillison insisted that he would only speak to Uchofen alone. In these circumstances, it is
my conclusion that the Respondent interfered with Uchofen’s right to have union representation
and that the ensuing suspension constituted a violation of Section 8(a)(1) and (3) of the Act.
I note that the Respondent called Uchofen back to work before the five day suspension
was over. And as a result of negotiations between the Union and the Company, Uchofen was
made whole for all monetary losses he suffered as a result of the suspension. Nevertheless, as
this suspension was at the start of a prolonged series of later unfair labor practices that are
described below, it is my opinion that any Notice required in this case should reflect this
particular violation as well. Thus, although the General Counsel does not seek any monetary
relief for this suspension, I shall take this violation into account as part of the appropriate
remedy.
The General Counsel also asserts that the Respondent violated Section 8(a)(1) of the
Act, when Gillison threatened to call the police on March 20 and called the police on March 24.
The theory is that the Respondent violated the Act because the Company had no general policy
prohibiting off duty employees from remaining on its property. But it is one thing to ask or
demand that an employee leave the property and another thing to ask or demand that an
employee leave one’s personal office. Although I have concluded that on both occasions,
Gillison was interfering with Uchofen’s right to have union representation, this does not mean
that the Company’s representative doesn’t have the right to terminate the interview and insist
that the others leave his office. In this particular case, it is my opinion that Gillison was within
his rights to call the police when Uchofen and Simino insisted on remaining in his office after
being asked to leave.
2. Alleged threat of Assault
on June 16, 2008
The General Counsel alleges that Gillison threatened Uchofen with violence on June 16,
2008. According to Uchofen, he asked to talk about what the pay rate was going to be for one
of the summer camp runs and that in response Gillison said that this was not union business
and to “please get out.” Uchofen states that he politely pressed Gillison to talk about the issue
but that Gillison stood up and then came toward him in an aggressive manner. According to
Uchofen, John Stewart put himself between the two men and said that it would be better if
Uchofen left. Neither Gillison nor Stewart testified about this transaction.
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In my opinion, even if I completely accepted Uchofen’s version, the actions of Gillison
did not rise to the level of a legally prohibited threat. At most, it shows an irritated and angry
Gillison responding to a request for information by the Union’s shop chairman. But it does not
show much more than that. I therefore shall dismiss this allegation.
3. Alleged Assault in November 2028
Uchofen testified that on or about November 25, 2008, as he was signing in to work,
Gillison came into the trailer and starting ranting in front of other employees that Uchofen was
the new boss here and that “he’s going to run the company now.” He states that after trying to
avoid an argument, Gillison still kept on making sarcastic comments to the effect that Uchofen
was the new boss. According to Uchofen as he was leaving the trailer, Gillison kicked him in
the back and told dispatcher John Stewart to take him of his run. Employee Rosie Clayton
essentially corroborated Uchofen’s account. I therefore conclude that the Respondent, by
Gillison’s actual assault on Uchofen, violated Section 8(a)(1) of the Act.
4. The Discharge of Uchofen
on January 21, 2009
The General Counsel alleges that Uchofen was discharged in relation to an event that
took place on January 21, 2009 because of his actions on that date as a union representative.
There is no significant dispute about the facts.
On the morning of January 21, 2009, the Company was conducting a State mandated
health examination for its drivers and monitors. To do this, batches of about 20 employees
were directed into the training trailer where they were given forms to fill out regarding their
medical histories. One by one, the employees were then examined by a physician in an
adjoining room. Prior to the actual examinations, Gillison was with the employees and was
giving them instructions regarding the forms. Also, as employees were sent in to see the
doctor, other employees were being give eye tests.
At about 10:30 a.m., Uchofen entered the trailer and during the time that Gillison was
giving instructions to the waiting employees, started handing out and asking employees to fill
out a questionnaire which sought input as to what issues employees wanted the Union to
address during negotiations. Gillison told Uchofen that he could not do this while employees
were waiting for their medical exams and that he would have to leave the trailer. Nevertheless,
Uchofen refused at least two requests to leave and phoned union agent Simino. He also told
the employees that this was a free country and that Gillison was no Fidel Castro. While still
standing inside the trailer, the owner arrived and asked Uchofen to come to his office. Uchofen
refused. At this point, Gillison called the police.
Upon the arrival of the police, who came at about the same time as Simino, Uchofen
was asked by the police to leave the trailer and he did. He then proceeded to hand out the
questionnaires to the employees outside the trailer as he had done on previous occasions
before this date.
In describing this event, Rosie Clayton, who was called by the General Counsel, credibly
testified as follows:
Q. Okay, why don’t you explain to me what happened while you were in the trailer
before your medical examination.
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A. We were taking an eye examination from Tom.
Judge Green: What else, if anything?
The Witness: Cesar started talking about the Union. So he kind of took our attention
a little bit from Tom when we were supposed to have been looking up at the chart for
our examination…
* * * *
Q. While everybody was waiting to have their medical examination -- or their eye
examination what was everybody doing?
A. Well Tom was still giving us some of what we were supposed to be doing as far
as the examination. We were really supposed to be listening to him.
* * * *
Q. You said that Cesar was sitting at a table. Is that right?
A, Yes.
Q. And what was he doing?
A. He kept talking about the Union. He was trying to give out the paper that he had
so we could see what was on the paper.
Q, And who was he giving the paper to?
A. To all of us; the ones that work with me.
Q. Was everybody right around Cesar?
A. A few of them was. It was just like just turned from the examination to what he
was doing.
Q. And what did Tom say?
A. He told him that we're conducting an examination right now, and you have to do
that on your own time.
Q. Did Cesar get up from the table?
A. No. He kept sitting there talking like he didn’t hear.
Judge Green: I would like to know in the witness’ own words what happened.
The Witness: He kept talking. He just kept talking and was telling us about what
was going on in the Union. And being honest, I had turned around myself. I turned
around to listen to what he was saying.
Judge Green: Then what?
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The Witness: Then [Tom] told him “I’m sorry, but you cannot do that. You cannot do
that in here.” He said “I called this meeting for the examinations so we can be back
in time for our run.” He said, “You have to call your own meetings.” And that’s what
he was saying to him, but he didn’t listen.
Judge Green: And what happened then?
The Witness: Then Tom said he wanted him out of there.
Judge Green: And what did Cesar do, if anything?
The Witness: He kept saying, “I’m not doing anything. You keep on doing what you
was doing. But he couldn’t do what he was doing because he needed them to sit
down so that they could see the chart for our eyes. We couldn’t see it.
* * * *
Judge Green: so how many times did Mr. Gillison ask Cesar to leave? If you can
remember.
The Witness: About three or four times.
Judge Green: And did Cesar –
The Witness: He told him he didn’t have to go anywhere because he wasn’t
bothering anybody.
Judge Green: Did any of the employees have anything to say or were they just
watching?
The Witness: We just sat back and watched.
The General Counsel argues that Uchofen’s discharge was unlawful because he was
engaged in protected concerted union activity on January 21, 2009. I do not agree.
There are cases where an employee’s otherwise concerted or union activity loses its
protection because of the way it is carried out. In Atlantic Steel, 245 NLRB 814, 816, the Board
established a balancing test for these types of situations. In determining if the employee’s
conduct lost the protection of the Act, the Board will take into account and balance the following
factors; (a) the place of the discussion; (b) the subject matter of the discussion; (c) the nature of
the employee’s outburst and (d) whether the outburst was provoked by the employer’s unfair
labor practices.
We are really not dealing with an employee’s verbal outburst. Rather, what we have
here is his refusal to leave a particular working location where employees are being addressed
by their manager and being given physical examinations that are necessary for them to do their
jobs. As shown by the testimony of Rosie Clayton, the conduct by Uchofen interfered with the
operations of the employer on that day and that he refused to leave the trailer after being
politely asked to leave. There was no good reason for Uchofen to be in the trailer handing out
his papers or talking to the employees while the Company was conducting the exams. He could
have easily waited just outside the trailer which was still on the Respondent’s property and
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handed out his questionnaires. Indeed, the evidence is that before this particular date, he did
so without any interference on the part of the Company.
Despite the fact that the Company demonstrably held Uchofen in enmity, this did not
give him, even though a union representative, the right to do whatever he liked. As I conclude
that his actions on January 21, 2009 were not protected by the Act, I shall recommend that this
allegation be dismissed.
d. Issues relating to Seniority
The Company and the Union have had a collective bargaining relationship since at least
2000. The evidence shows that a complete contract document was executed in 2000 and ran
from September 1, 2000 to June 30, 2002. Thereafter, the parties executed a number of
memoranda that updated the initial contract. Whatever confusion may exist because of the
failure of the parties to execute a newer fully detailed contract, there is no doubt that the parties’
agreements, as manifested by the various documents, required that seniority be utilized before
routes were assigned to drivers and monitors and that the routes be posted in advance so that
employees, in order of seniority, could bid for their selections.
It is also clear to me that the choosing of routes via a posting and a seniority/ bidding
process was intended to cover not only the normal school year routes, but also other routes that
the Company obtained from its customers during the course of the year.
In this regard, there are two basic types of seasonal routes. (a) The Company contracts
with schools and school districts to drive children to and from schools during the school year.
These would be during the period from September to June. (b) The Company also contracts to
provide bus services to summer camps or other organizations having summer activities. These
would take place after the regular school year ends and run until sometime in August before
school resumes. In addition, there are also a few pre-kindergarten routes for Westchester
County that also are steady and recurring.
As to the above described basic seasonal routes, it does not take all that much
imagination to figure out how to set up a system so that employees, in order of seniority, can bid
for their selections. Since these routes, (school year routes, prekindergarten routes and
summer camp routes), tend to be recurring and contracted for well in advance, the Company
can post the routes in a public place and the employees, after reviewing them, can be given the
opportunity, in order of seniority, to made their individual bids.
But there are also non-recurring routes and/or changes in regular routes that come
about on a more an ad hoc basis. These would include charter routes which normally involve
after school events such as sporting events. Also, changes in scheduled routes may occur, for
example, because a new student is enrolled in a school and an existing route needs to be
modified to pick him or her up. The provisions of the “contract” would seem to encompass
these types of routes as well as the basic seasonal routes. However, I must say that the
establishment of a new bidding process every time a route is changed or a charter route is
obtained, strikes me as being impractical at best. 7

7 For example, a school may cancel an existing route or add a new route. If a route is canceled, the
driver and/or monitor who had the canceled route would have to be reassigned. And if a new route is
created and received by the Respondent, that route would have to be covered by a driver and/or monitor.
In either case, how would you set up a practical bidding process to meet these contingencies? If a driver
Continued
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1. The 2008 Summer Camp Routes
According to John Simino, in late May 2008 he told Gillison that he wanted to speak
about the summer picks. He states that Gillison refused to discuss the issue and said that the
Union had no say in the summer picks. Simino testified that he thereupon requested
information regarding the value of the summer routes, meaning the number of hours for each
route so that employees could choose how many hours they wanted to work and how much
money they wanted to earn.
According to Simino, he attempted in early June to arrange for two meetings to discuss
the summer routes but that Tiktin cancelled both meetings.
On June 20, 2008, union representative Simino sent a letter to the Company which
stated the following:
Over the past three weeks we have agreed on two scheduled meetings to
discuss a summer pick. You cancelled the first one the day before and the
second meeting you cancelled twenty minutes before we were to start. Both
times you informed me that the rest of the week you had auditors so you could
not see me.
Simino testified that he eventually obtained a meeting with the Company in late June
2008 and was given some information. But he also testified, without contradiction, that the
information given to him did not have the hours of work for the routes.
In the meantime, the Company, in mid-June 2008, had already invited representatives
from the summer camps to visit the facility. Basically, what happened was that by this time, and
before any information had been turned over to the Union, the Respondent had already
assigned employees to the summer routes and had arranged for the drivers to meet with the
representatives from the camps to which they had been assigned. The Union was not notified
of these transactions and the evidence shows that the employees were not given any
opportunity to bid for these routes.
I have already noted that the parties had executed contract documents pursuant to
which routes, including summer camp routes, would be posted for bid on the basis of employee
seniority. Therefore, information relating to the upcoming routes, including the types of route
and the hours that the routes would take to run, was information which not only is presumptively
relevant, but is also relevant to enable the Union to administer the seniority provisions of the
contract. Moreover, since the routes were to commence in early July, they needed to be
selected before that date and the information, in order to be meaningful, had to be made
available to the Union and the employees before the start of the selection process.
As the evidence shows that the Company did not provide in a timely manner, information
relevant to the Union for the administration of its collective bargaining agreement, I conclude
_________________________
lost his route, would he be allowed to bid and bump a less senior driver on some other route? And if that
happened, would the bumped driver be then permitted to bid to bump yet another driver? Would this
create a cycle of bids? Where would it end? If these contingencies cannot be addressed in the real world,
then one wonders if the contract seniority bid provisions insofar as they involve ad hoc routes, would be
impossible of performance.
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that the Respondent violated Section 8(a)(1) and (5) of the Act. NLRB v. Acme Industrial Co.,
385 U.S. 432, 437 (1967); Knappton Maritime Corporation, 292 NLRB 236 (1985); Frito-Lay
Inc., 331 NLRB 1296 (2001); ATC, LLC d/b/a ATC of Nevada; 348 NLRB 796 (2006).
2. The Picks for the Regular School Bus Routes
The allegations involving the 2008-2009 school bus routes fall into three categories.
First, is the allegation that the Company unilaterally and without the consent of the
Union, modified the existing collective bargaining agreement by failing to carry out terms
requiring the Company to post routes and allow employees to bid for those routes based on
their seniority. The General Counsel therefore contends that the Respondent’s actions violated
Section 8(d) and 8(a)(1) and (5) of the Act. In this respect, Section 8(d) of the Act essentially
states that when there is a collective bargaining agreement in existence, “the duties so imposed
shall not be construed as requiring either party to discuss or agree to any modification of the
terms and conditions contained in a contract for a fixed period, if such modification is to become
effective before such terms and conditions can be reopened under the provisions of the
contract.” On the other hand, this same provision of the Act states that the obligation to
maintain, absent consent by the other party, the terms of an existing labor agreement during its
term will cease in the event that the labor organization “has been superseded as or ceased to
be the representative of the employees subject to the provisions of section 9(a).”
The second 8(a)(1) and (5) allegation is that in relation to grievances filed by the Union
concerning the alleged breach of the seniority/bidding provisions of the agreement, the
Company refused to furnish certain information that would have been relevant to the
investigation and/or prosecution of these grievances.
The third allegation is that the Company refused to meet with the Union as to certain
other grievances. In this regard, the provisions of the grievance/arbitration clause require the
Company to meet with the Union at a step two meeting. The evidence is that the Respondent
refused to respond to at least two requests by the Union to have step two meetings.
Irrespective of the provisions of the contract, I construe this as basically an allegation that the
Employer refused to meet at reasonable times regarding terms and conditions of employment. 8
As the evidence shows that the Company refused to meet with the Union on these grievances, I
conclude that it violated Section 8(a)(1) & (5) of the Act in this respect.
I note here that certain of these grievances including the grievances involving the
seniority/bidding issues were presented to an arbitrator who ultimately issued an Opinion and
Award in favor of the Union. (As of this time, the Union’s had filed a lawsuit seeking
enforcement of the Award and this is pending in the Federal District Court). Thus, while this
unfair labor practice Complaint alleges that the Respondent, in violation of Section 8(d) and
8(a)(5), modified the existing labor agreement, the same basic claims were made to the
arbitrator. I also note that in relation to the refusal to furnish information allegations of this
Complaint that this matter was also presented to the arbitrator who concluded that the
Company’s failure to furnish the same information was grounds for drawing an adverse
inference against the Company as to the underlying grievances.

8 Section 8(d) states in part: “For the purposes of this section, to bargain collectively is the
performance of the mutual obligation of the employer and the representative of the employees to meet at
reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of
employment, or the negotiation of an agreement or any question arising there under…”
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As many of the alleged violations that are described in this Section have already been
arbitrated and are pending possible enforcement by a Federal District Court, there is a question
as to whether the Board should defer these allegations to the arbitration process.
Moving on to late August 2008.
Because the regular school year routes commence in September, the drivers and
monitors need to be assigned in advance. This process usually takes place in late August.
For the 2008-2009 school year, the parties arranged for a process whereby drivers and
monitors would make their picks, (based on seniority), over a several day period starting on
August 25, 2008.
However, prefatory to the route pick, Gillison, at a meeting with union representatives on
August 20, 2008, presented a document describing how the Company intended to conduct the
route pick. This stated:
1. Route picks will be in effect from Monday, August 25, Tuesday, August 26 and
Wednesday August 27.
2. An employee may pick and sign for a route but if a senior employee chooses
to pick that same route at a later date before the route pick close date, the senior
employee will have the right to the route.
3. It will be up to all employees to check the route pick board daily to know if the
route they have picked is still in effect. Employees may also call in and speak to
Joe Ramos, the Company’s safety director or John Simino … to find out the
status of their route signing.
4. Many routes may change in the way of adding to, subtracting from, combining
with another route, or deleting all together because of school district changes or
changes from the company.
5. Employees will have the right to change their route pick according to seniority
if there are changes made for less hours in for of a different route until
Wednesday, August 27, 2008.
6. No employee who has been with the company under sixty days will be allowed
to pick a route. The company will assign the routes.
7. There will be only one route pick during the 2008 -2009 school year.
8. During the school year, if a route changes by increasing or decreasing hours,
the employee will not be allowed to bump the employee with the changed hours.
This would cause a domino effect in the company’
Contrary to Gillison’s assertion that the Union had previously agreed to these
procedures, Simino credibly testified that there was no such agreement about certain terms.
One of Simino’s objection was that the Company’s proposal did not permit any further bidding
process to take place after the initial selection of routes had been made. That is, in the event
that a school changes an assigned route, (either by being shortened or lengthened), neither the
employee assigned to that route or any other employee would have a right to bid for the now
changed route or for some other route. Another objection was that under the Company’s
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proposed procedures, probationary employees would not be allowed to bid for routes and there
is nothing in the labor agreement that allows the Company to carve out such an exception. 9
It is the Union’s position that by putting into effect the procedures tendered on August
20, 2008, the Respondent altered the terms of the seniority provisions of the labor agreement
which, by its terms, seems to call for a bidding procedure by seniority for any and all routes. But
I have already noted that it may be that a literal application of those provisions in the case of
intermittent routes, (like charters), or in situations where routes may unexpectedly be changed
by the Respondent’s customers, cannot be practically accomplished. Indeed, a continual
bidding process that would take place over the course of a year may simply be impossible of
performance for the assignment of routes that are obtained or changed on an ad hoc basis
through no fault of the Respondent.
In any event, the fact is that starting on August 25, 2008, a bidding system was set up
whereby the routes were posted in a trailer and the employees, in order of seniority, were
assigned a specific time to make their route picks. When an employee made a pick, he or she
notified the union and company representatives who were present. The employee then signed
a “route pick form.” The picks were finished by August 29. Thereafter, the Company did not
conduct any bidding procedure for the remainder of the year.
Notwithstanding the procedure set up for August 25 to August 29, the evidence shows
that the Company did not, in fact, post all of the routes. Instead, there were certain routes that
were not put up for bid and were assigned unilaterally by the Respondent. Thus, in a letter
dated August 28, 2008, Gillison essentially admitted that the Irvington, Dobbs Ferry, and
Westchester County routes, along with one route for the Ursuline School, were assigned by
means other than the bidding/seniority process. He stated, in effect, that the drivers and
monitors that had done these routes in previous years were either assigned to or given
preference over anyone else, irrespective of seniority. Gillison referred to the “contract”
between the Respondent and Westchester County as the justification for withholding these
routes from the August bidding process.
By letter dated August 28, 2008, Simino notified the Company that the Union was
grieving the integrity of the bidding process that had just taken place. He stated:
We are objecting to the posted pick. As it turns out an extensive amount of
routes were closed off from picking as the schools allegedly picked drivers
instead of the other way around. All the Irvington, Dobbs Ferry and
Westchester County routes were closed off the pick. We began questioning
this practice at an August 22 discussion of the pick. It seems this practice is far
more extensive than portrayed at that discussion. Any pick that eliminates that
many jobs is a violation of the pick’s integrity and amounts to a gross violation
of our members’ seniority. Consider this our notification of grievance on this
issue.
By letter dated October 23, 2008, Uchofen wrote to the Company and requested certain
information as follows:

9 As I understand the situation, it is the schools that determine the routes and not the Respondent.
Thus, any route changes that may occur during the year will originate at the school involved and that
change will be transmitted to the Respondent. Thus, the Respondent, as far as I am aware, does not
design or set the routes. It simply assigns the personnel to do the already established routes.
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The Union … is investigating a grievance regarding bus routes giving out of seniority.
Please provide the following:
1. All routes info.
2. A list of the drivers and monitors who have assigned to the routes.
3. List of drivers and monitors who are not assigned to any routes.
4. Any temporary or short term routes
5. List of routes that have been canceled.
6. List of new routes after September 2008.
7. The new routes that you posted to pick by seniority since September until
now.
8. The charter routes that you posted to pick by seniority since September until
now.
Tiktin’s response was as follows:
Your requested route information for your investigation of grievances as to seniority:
are as follows:
1. Unless you have a specific grievance of a specific route and employee for us
to answer, we are not obligated to reveal company documents with you.
2. As for the monitors and drivers who are assigned to routes they picked their
own routes or if they were not present for the route picks they were assigned
routes by TWU –Local 100 with Harold Williams as union overseer. You
should be able to obtain a copy of the route picks from Harold Williams.
3. As far as a list of employees not assigned to routes those employees are
considered spares and can be assigned to whatever routes that are needed.
4. We have no temporary or short term routes. All routes are permanent are
added or deleted as the districts decides to do so.
5. Please tell us why we should be obligated to give you company route
information as to which routed added or deleted? This is company
information for company review only. Unless that information is needed to
prove points via arbitration or the NLRB we see no reason why it should be
given to you.
6. There have not been any other routes posted for pick since the start of
schools or in September 2008.
7. Our charters come to us daily and they are assigned by seniority.
On October 29, 2008, Uchofen, on behalf of the Union, filed the following grievance:
Management is required to post all runs, including charters by seniority. Route
becoming vacant during school year shall be subject to bid and by seniority and
qualifications. Ardsley bus has not posted all runs for the bidding process and
this resulted in less senior drivers & monitors driving routes with more hours than
more senior drivers & monitors. Additionally, the withholding of the routes was
intentional. Any and all work should be posted by seniority. Remedy Sought:
Rebid of all work by seniority and back payment to any and all drivers and
monitors who lost pay.
The Respondent responded by sending a letter dated October 31, 2008. This read as
follows:
Re: Grievance 10/29/08 vacant routes and posting new routes.
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1. There is no such thing as a vacant route. All of our routes are routes of
operation.
2. There are no routes that come up for bid during the year. The company only
bids for contracts. If there is a route or routes that come up for bid that you know
of, please specify the route and if there is a grievance about such a route, you
have the right to submit it to us. Otherwise just writing nonsense grievances
should be stopped. I have received several grievances from you of the same
nature seeking information without a valid grievance from a named employee.
You just send me letters of what you think the company should be doing. I will
remind you that it is not your job to instruct this company on what we should do
or not do.
3. The contract requires only one route pick at the start of schools and “no
other.”
4. As for charters, I have made clear to the union and to you in the past and
again I will explain why our charters are not posted daily the way you think they
should. 95% of the charters are athletic trips that come in the day before the trip
is scheduled to run. Many of the trips change sites, times or postponed for
another day, sometimes out right cancelled at the last minute or on site.
(Therefore what I am saying is that our charter work is subject to change in a
moment’s notice). Many charters are assigned to drivers at the completion of
their school routes. When there are changes in the schedules many drivers
could lose out on doing charters at all. (Money lost to the driver).
5. Your statement accusing me of intentionally withholding routes with more
hours from the senior employees is absolutely false without proof.
6. Cesar you continue to tell me that you are always trying to work with me on a
good faith basis and that we must develop a good working relationship for the
benefit of all. If this is how you plan to build a good working relationship please
leave me out.
On October 31 2008, Simino sent another letter to Titkin asking for step 2 hearings on a
number of other grievances. The letter goes on to state that unless the Company scheduled
these grievances for a step 2 meeting, the Union would have them scheduled for arbitration.
Simino testified that he received no response.
On November 19, 2008, union attorney Levelt, sent a letter to the contractually named
arbitrator, (Andrew W. Sayegh), requesting that a number of grievances be arbitrated. 10 These
included the assertion that the Company (a) had not allowed employees to bid by seniority for
the summer camp routes and (b) that the Company “had violated the integrity of the August
pick.”
On December 8, 2008, the Union’s attorney sent the following letter to the Respondent:
In order to prepare the above referenced grievance for arbitration, we request the
following information.
1. Any evidence of work posted available for bid after the August 2008 pick;

10 Paragraph 15(d) of the contract states; “arbitral matters shall be submitted to Andrew Sayegh or a
representative for the American Arbitration Association.”
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2. Copies of route descriptions of all work performed by drivers and monitors,
(including charters, extra work/runs, vacations, holidays) from August 1, 2008 to
the present with an indication of the time period the route or other work was
being performed and who performed the work on which day;
3. Payroll records for all drivers and monitors from September 1, 2008 to the
present;
4. Seniority list of drivers and monitors effective on or about July 1, 2008; and
5. Copies of all contracts with the Board of Education of the different
municipalities underlying the work described under no. 2 above.
We appreciate a response to this request by December 22, 2008 so we can
review the evidence before the date of the arbitration hearing. At the time of the
hearing we expect an update of the information requested to the date of the
hearing.
In a letter dated December 23, 2008, Respondent’s counsel advised the arbitrator that
the Company objected to him hearing the arbitration cases. The letter asserted a claim of bias
on the part of the arbitrator.
Without describing all of the procedural aspects, suffice it to say that an arbitration
hearing commenced on May 4, 2009. During that proceeding, the arbitrator issued an interim
order requiring the Employer to produce the information requested by attorney Levelt. When
that information was not turned over, the arbitrator utilized that failure as a reason to draw an
adverse inference in his August 18 opinion. The opinion, which sums up the facts relating to the
seniority issues, stated:
In the last week of August 2008, the Company ostensibly held a Pick for the
ensuing school year by posting available work and permitting employees to
choose from among the posted work by order of seniority. The Union complains
that in the weeks after the Pick was conducted it came to their attention that
there was more and different work available than the work that was actually
posted for the Pick. And the Union further complains that this work was assigned
by the Company in violation of the Collective Bargaining Agreement, Sections
10(d) and (e); much of the work picked by the employees was cancelled,
modified and reassigned by the Company. The Union requested certain
disclosure of information that is in the sole custody and control of the Company,
information the Union feels is necessary to aid it not only in monitoring and
enforcing its members’ seniority rights but also to aid it in framing and presenting
its grievance. The Union feels the requested material is of “utmost importance”
as to enable it to specifically present its grievance. It feels it has the right to
know what work is available and how the work is being assigned by the
Company.
The Company’s position relative to this issue is simply that there was no seniority
violation of any kind; the Union’s grievance is a general complaint lacking any
specificity and therefore the Company is placed in a position to disprove a
negative, which is, in essence, impossible. The Company, however, did agree to
provide the requested information if the Union can demonstrate a “good faith
basis” for its complaint, a position I find to be reasonable.
In an Opinion and Award dated July 17, 2009, I found that the Union did in fact
demonstrate a good faith basis for its complaint of seniority violations and I
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ordered the Company to furnish to the Union some of the items that the Union
has demanded.
In the continuation hearing on this issue that was held on July 22, 2009, I was
pleased to learn from the company that it intends to comply with my July 17th
Award. However, as of the last day of hearings, August 4, 2009, I learned that
the Company has not complied with this Award. The Company was given due
notice that I will draw a negative inference if the company fails to comply with my
July 17th Award, and I therefore draw a negative inference by this
noncompliance.
I find that the Company has violated Section 15 (e) and Section “5” of the 2002-
2006 Memorandum of Understanding. All runs open for bid must be posted and
picked by seniority and all extra work including charters, summer camps and
extra runs must be posted, when possible and picked when possible or assigned
by seniority.
In light of my finding of seniority violations I therefore order the following:
1. The Company must hold a Pick as soon as reasonably possible posting all
work available for the bargaining unit and permit employees to pick by
seniority and qualification; and
2. The Company must post all holidays, vacations and extra work (when
possible) and permit employees to pick by seniority and qualification; and
3. The Company must post all routes becoming vacant during the school year
and permit employees to bid for such work by seniority and qualification.
With respect to the Union’s demand to make whole all drivers and monitors injured
because of violation of their seniority, this issue shall be determined at a further hearing.
The General Counsel contends that the Respondent violated Section 8(a)(5) of the Act
by unilaterally changing the bidding procedure to be utilized for the picking of the regular school
bus routes. The General Counsel also alleges that the Respondent violated Section 8(a)(5) and
8(d) by modifying, without the consent of the Union, the existing labor agreement by failing to
allow employees to bid by seniority for all available routes. These are two separate allegations
and are based on two separate theories.
As to allegation that basically goes to the bidding process that occurred in late August
2008, there was no evidence presented to me as to how that process was conducted in 2007 or
in any previous years. It is safe to say that the Union objected to the fact that the Respondent,
on August 20, 2008, presented the Union with a document that described how it intended to
conduct the bidding for assignments. Maybe this was a change, but I cannot say specifically
how this changed the procedure that occurred in previous years. (From hints in the testimony, it
seems that the Union was not too happy with the way the bidding process was conducted in
2007). Therefore, in the absence of evidence as to how this bidding process was conducted in
previous years, I find no merit in a theory that is predicated on the assumption that the
Respondent unilaterally changed the bidding practices without bargaining with the Union.
But that does not end the inquiry.
I have already set forth the relevant language of Section 8(d) of the Act. And in
Milwaukee Spring Division, 268 NLRB 601, 602 (1984) the Board stated:
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Section 8(a)(5) and 8(d) establish an employer’s obligation to bargain in good
faith with respect to “wages, hours, and other terms and conditions of
employment.” Generally an employer may not unilaterally institute changes
regarding these mandatory subjects before reaching a good faith impasse in
bargaining… Section 8(d) imposes an additional requirement when a collective
bargaining agreement is in effect and an employer seeks to modify… the terms
and conditions contained in the contract. The employer must obtain the union’s
consent before implementing the change.
In the absence of a contract, or in the absence of a controlling contract provision, or after
a contract expires, an employer that has a legal obligation to bargain with a union can only,
without a sufficient waiver, change the existing terms and conditions of employment after giving
notice to the Union and bargaining to an impasse over the proposed change. If no agreement is
reached, an employer can then make the proposed change. But when there is an existing
contract, it is not enough to bargain. Neither the union nor the employer can, in mid-term,
modify that contract without the consent of the other. Absent consent, no amount of bargaining
will permit a change during the lifetime of an existing contract.
At the same time the Board has made a distinction between “mere breaches” of contract
and situations that constitute contract modifications prohibited by Section 8(d) and 8(a)(5). A
Board majority in NCR Corp., 271 NLRB 1212 (1984) distinguished the two situations by holding
that there would be no violation if the Company had "a sound arguable basis" for its
interpretation of the agreement. See also Allied Signal Inc., 330 NLRB 1201, 1203 (2000),
where the Board found a violation and held that the employer had no sound arguable basis for
its position.
The labor agreement that was effective in 2008 and 2009 contained provisions that
literally required the Company to post all routes so that employees could bid for them on the
basis of seniority. The evidence shows that insofar as the summer camp routes, the Company
did not post those routes; instead assigning them, for the most part, to employees who had
done them in the past. Additionally, there is simply no dispute that in late August 2008, the
Company omitted from the bidding process a substantial group of routes for the regular school
season. The reason for eliminating those routes is not relevant as there is no question but that
the routes, under the terms of the contract, were required to be posted for bid by seniority. In
both of these situations, the violations of the terms of the labor agreement were clear and
unequivocal and I conclude that the Respondent had no sound arguable basis for its failure to
follow its terms. As such I conclude that the Respondent violated Section 8(a)(1) and (5) and
8(d) of the Act.
There is also evidence that after the August 2008 picks, the Company, from time to time,
changed the assigned routes and did so without putting them up for re-bid. The same can be
said for charter routes that typically come into the company from its customers during the same
week that they must be assigned.
A literal reading of the contract would seem to require that all of these routes be subject
to a bidding procedure at any time that the situation presents itself. I have already indicated my
misgivings about the practicality of having an ongoing bidding process throughout the year to
deal with changes that are the result of route changes that are solely made by the Respondent’s
customers or to charter routes which come in on an ad hoc, daily or weekly basis. Put another
way, an argument can be made that such a literal application of the contract would be
impossible of performance. And in fact, the arbitrator seems to have recognized this problem
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when he stated that all extra work must be posted and bid by seniority when possible. As there
is at least an arguable position that the Respondent could take with respect to the assignment of
these limited types of routes, it seems to me that this involves an issue of contract interpretation
that should, (and was), resolved by the arbitration process.
The General Counsel alleges that the Respondent refused to furnish relevant
information to the Union regarding the assignment of the summer camp routes and the
assignment of the regular school year routes. I have already dealt with this issue in relation to
the summer camp routes. This leaves the information requests regarding the regular school
year routes where the evidence shows that the Respondent failed to furnish certain information
regarding this subject after numerous requests.
Pursuant to Section 8(a)(5), each party to a bargaining relationship is required to bargain
in good faith. And part of that obligation is that both sides are required to furnish relevant
information upon request. NLRB v. Acme Industrial Co., 385 U.S. 432 (1967). Requests for
information may come in essentially two contexts; (a) bargaining for a collective bargaining
agreement or (b) processing a grievance. In relation to information sought during the term of an
existing contract, a Union’s responsibilities include: (a) monitoring compliance and effectively
policing the collective-bargaining agreement, (b) enforcing provisions of a collective-bargaining
agreement, and (c) processing grievances. American Signature, Inc., 334 NRB 880, 885
(2001). This means, among other things, that an employer is required to provide information
even in the absence of a filed grievance. This is because a union is entitled to information that
would be relevant to evaluate whether or not it wishes to file a grievance in the first place. To
the extent that furnished information may deter a union from filing a grievance, this is useful to
its role of enforcing a contract because it can then more effectively allocate its resources and
not waste time and money on issues where it would not likely prevail. J. I. Case Company v.
NLRB, 253 F.2d 149 (7th Cir. 1958); Universal Atlas Cement Division of United States Steel
Corporation, 178 NLRB 444 (1969).
Where there is a request for information in either context, the Board makes a distinction
between information which is presumptively relevant and all other information. Where the
information requested is presumptively relevant, (such as the names of employees, their job
titles, rates of pay, hours of work, etc.), the party seeking the information is not required to show
relevance. Ohio Power Co., 216 NLRB 987, 991 (1975), enfd. 531 F.2d 1381 (6th Cir. 1976);
Dyncorp/Dynair Services, 322 NLRB 602 (1996), enfd. 121 F.3d 698 (4th Cir. 1997);
International Protective Services, Inc., 339 NRLB 541 (2003); Deadline Express, 313 NLRB
1244 (1994). As to presumptively relevant requests, it is the employer that has the burden of
proving the lack of relevance, and a union does not need to make a specific showing of
relevance unless the presumption is rebutted. Contract Carriers Corp., 339 NLRB 851 at 858
(2003).
If the information sought relates to the processing of a grievance, (or potential
grievance), the legal test is whether the information is relevant to the grievance and the
determination of relevancy is made based on a liberal, discovery type of standard. NLRB v.
Acme Industrial Co., 385 U.S. 432, 437 (1967); Knappton Maritime Corporation, 292 NLRB 236
(1985).
In my opinion, the Respondent’s failure to furnish adequate information in a timely
manner regarding the regular school year routes relate to the hours, rates of pay and terms and
conditions of employment for the bargaining unit employees. That is, the information requested,
(and summed up by the Union attorney’s letter dated December 8, 2008) was, in my opinion,
relevant to the Union’s right and obligation to administer the terms of the collective bargaining
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agreement’s seniority/bidding provisions. Further, although contracts between a company and
its customers are not presumed to be relevant,11 it is my opinion that because the Respondent
claimed that its contracts with certain customers precluded it from assigning those routes by the
seniority/bidding process, those contracts would be relevant to the Union’s investigation of and,
if deemed appropriate, to its prosecution of an arbitration case.
In this case, the Union proceeded to arbitration on these same issues and requested the
same information in the arbitration proceeding. As noted above, the Respondent failed to
furnish all of the information requested despite the arbitrator’s Order requiring it to do so. And
the ultimate outcome was that the arbitrator, much like an Administrative Law Judge of the
NLRB, decided to draw an adverse inference and decided that the Company breached the
terms of the collective bargaining agreement by failing to put all routes, (summer camp routes,
regular school year routes, charter routes, etc.) up for bid by seniority.
So, having obtained a completely victory and potentially complete remedy before the
arbitrator on the seniority/bidding issues, why is the Union and the General Counsel relitigating
those same issues before me?
The General Counsel argues that the award does not warrant deferral because the
arbitrator did not order backpay. This contention is not really accurate because it is clear from
the opinion, that the arbitrator contemplated a subsequent proceeding to determine what if any
back pay was due to employees who may have been adversely affected by the Company’s
failure to comply with the seniority/bidding procedure. He stated:
With respect to the Union’s demand to make whole all drivers and monitors
injured because of violation of their seniority, this issue shall be determined at a
further hearing.
This is analogous to the way that the Board processes its own cases; first with a
determination as to liability and then, if necessary, with a back pay hearing to determine the
amount of loss to employees.
In Electronic Reproduction Service Corp., 213 NLRB 758 (1974), a Board majority
decided to defer to arbitration, awards involving discharge or discipline cases where the Union
had failed to present to the arbitrator, the same evidence it was relying on in filing an unfair
labor practice charge. The Board stated inter alia;
[I]n deciding Spielberg and Collier, the Board sought to discourage dual litigation
and forum shopping by encouraging the parties to employ initially the contractual
procedures for dispute settlement which they have created, (Collyer), and to
permit the dispute resolution achieved through those procedures to stand in the
absence of procedural irregularity or statutory repugnancy (Spielberg). Thus the
purpose of both Collyer and Spielberg is to encourage, require, and generally to
honor the utilization of contractual procedures where “a set of facts… presents
not only an alleged violation of the Act but also an alleged breach of the
collective-bargaining agreement.”
* * * *

11 F.A. Bartlett, 316 NLRB 1312.
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[W]e believe the better application of the underlying principles of Collyer and
Spielberg to be that we should give full effect to arbitration awards dealing with
discipline or discharge cases, under Spielberg, except when unusual
circumstances are shown which demonstrate that there were bona fide reasons,
other than a mere desire on the part of one party to try the same set of facts
before two forums, which cause the failure to introduce such evidence at the
arbitration proceeding.
In Malrite of Wisconsin, 198 NLRB 241,242 (1972), the Board was asked to defer its
decision, (in an 8(a)(5) case), where an arbitrator had already ruled in favor of the Charging
Party. The Board stated:
In our opinion, the dissent misconstrues Spielberg by distinguishing between
those arbitration awards ruling in the grievant’s favor by finding a contract breach
and those rulings against the grievant. Although we may not have previously
deferred to an award favoring the grievant, this is because, so far as we can
determine, such a case had not heretofore been presented to us. Indeed, the
absence of such cases demonstrates the remedial effectiveness of arbitration
awards, since a person who has had his grievance remedied is not likely to file
an unfair labor practice charge concerning that grievance. Such would have
been the case here if the Employer had readily complied with the arbitration
award.
In addition, we fail to understand our dissenting colleagues’ claim that there is no
adequate remedy at law…. Judicial enforcement would result in an order, backed
by the full powers of the Federal judiciary, that the Employer comply with the
award, and the only way the Employer can comply is to refrain from employing
combo operators, except as permitted by the arbitration decision. Thus,
enforcement would provide the Union with full remedial relief. Nor is there any
apparent barrier to court enforcement, since, so far as the arbitrator’s decision
concerns construction of the contract, the courts have no business overruling him
because their interpretation of the contract is different from his.” Steelworkers v.
Enterprise Wheel and Car Corp., 363 U.S. 593, 599.
Citing footnote 11 in 15th Avenue Iron Works, Inc. 301 NLRB 878, (1991), the General
Counsel argues that the Board will not defer issues that are closely related to non-deferrable
issues or situations where the employer has essentially repudiated the collective bargaining
relationship. The Board stated:
We further find no merit in the General Counsel’s reliance on the failure
of the Respondent to comply with the existing arbitration awards. Under
Malrite of Wisconsin, 198 NLRB 241 (1972), enfd. in relevant part 494 F.2d
1136 (D.C. Cir. 1974), noncompliance with an arbitral award is not ‘‘a matter
for the Board’s concern.’’ The General Counsel attempts to distinguish this
case from Malrite on the ground that the Respondent’s failure to comply with
several arbitration awards constituted a repudiation of the contract, citing
Electronic Reproduction Service Corp., 213 NLRB 758 (1974), as authority
supporting that distinction. In that case, however, the refusal to execute a
contract pursuant to an arbitrator’s award struck at the very essence of the
collective bargaining relationship. Id. at 759, fn. 2. By not signing the contract, the
Respondent in effect repudiated that relationship. Hence, the bargaining process
itself was at stake and deferral to the award would not protect or enhance it. We
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are not faced with that situation here. The Respondent does not deny its
obligations under the contract but claims a lack of funds to meet them. Further,
the Respondent’s noncompliance relates to arbitral awards all stemming from the
breach (albeit repeated) of the same contractual provisions. In that respect, it is
not dissimilar from Malrite, which involved the breach of a single contractual
provision in the form of a unilateral change in a term and condition of
employment that the respondent continued uninterrupted in the face of an
adverse arbitration decision and award.
In the present case, I do not think that the fact that the Company breached the
seniority/bidding provisions of the contract in the summer and fall of 2008, demonstrates that
the Respondent, at that time, had a “plan” to repudiate the collective bargaining relationship.
However, I am not going to defer these 8(a)(5) and 8(d) allegations. There is no
question but that the Employer failed to comply with the seniority/bidding provisions of the
collective bargaining agreement, at least insofar as the summer camp routes and the regular
school bus routes are concerned. There also is no doubt that the Respondent failed to furnish
information that was relevant so that the Union could investigate and grieve these contract
breaches. Moreover, the information in question will continue to be relevant so that the Union
can investigate and determine, perhaps through further arbitration proceedings, what if any
losses employees may have suffered because of the contract breaches. The Respondent’s
conduct not only constitutes substantial contract avoidance but is the kind of conduct that would
tend to undermine the Union in the eyes of the bargaining unit employees. Therefore, this type
of conduct is, in my opinion, inextricably entwined with the question as to why the Union may
have lost its majority status. Accordingly, this conduct is related to the contention that the
Union’s purported loss of majority status was tainted by the Respondent’s avoidance of its
contract obligations. In the end, these substantial contract breaches and the related refusals to
meet at step 2 for grievances, plus the refusals furnish information are, in my opinion,
proximately related to the Respondent’s ultimate repudiation of the collective bargaining
relationship.
e. Miscellaneous 8(a)(1) Allegations
during 2008 and 2009
The General Counsel asserts that in September 2008, the Respondent threatened
Uchofen with unspecified reprisals, told him that he was being denied work because of his union
affiliation, and made statements indicating the futility of union representation.
To support this allegation, the General Counsel relies on the testimony of Uchofen at
pages 896-898 and 960 to 962 regarding a conversation that Uchofen had with Gillison in early
September. In my opinion, nothing in this conversation supports the allegations that Gillison
made statements of futility or that he threatened Uchofen with unspecified reprisals. At most,
this testimony shows that Gillison was annoyed by the Union and that he was merely asserting
his status as Uchofen’s boss.
Insofar as Elisa Arias’ alleged statement that Uchofen was not given certain routes
because he was a “union person,” that allegation was never part of the original or amended
Complaints and the General Counsel only sought to amend the Consolidated Complaint at the
close of the hearing. I denied this Motion for the reasons set forth in Appendix A.
It is claimed that on some undetermined date, Gillison threatened that it would withhold
certain benefits from the mechanics that supported the Union.
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On December 5, 2007, the Union and the Company entered into a settlement that
resolved a grievance relating to the payment of tool allowances to the mechanics. At some later
point, the Union apparently claimed that the Company was not complying with the settlement. It
also seems that Gillison, who asserts that the Company did in fact make the payments, met with
the mechanics and asked them to confirm this in writing. Juventino Lopez, a mechanic’s helper,
testified about this meeting and in my opinion, his testimony was very confusing. As best as I
can determine, he testified that Gillison asked the mechanics whether they wanted the money
and also asked them if they worked for the Company or the Union. According to Lopez, he
piped up and said that if money was being given out, he would like to have some too.
In January 2009, the Company asked the mechanics to sign a letter regarding the tool
allowance issue. This stated:
To whom it may concern:
Please be advised that I, [employee name], am a school bus mechanic at
Respondent bus Corporation and I received my tool allowance of $250.00 for
2007 and 2008.
With respect to the tool allowance issue, I think that the testimony of Lopez is insufficient
to establish that Gillison threatened employees with the loss of benefits if they supported the
Union.
Nevertheless, I think that the evidence establishes that the company, by asking
employees to sign the above described letters was engaged in “direct dealing.” From what I can
see, there was a dispute as to whether or not the mechanics were paid the tool allowances in
accordance with a previous grievance settlement. In my opinion, by asking employees to sign
these letters, the Company was, in effect, seeking to induce employees, in the absence of union
representation, to waive any claims that they might have pursuant to the settlement. As such, I
conclude that the Respondent has violated Section 8(a)(1)&(5) by its actions in bypassing the
employees’ union representative and attempting to deal directly with employees to resolve, (to
the benefit of the Company), a contract grievance. See Permanente Medical Group, 332 NLRB
979, 982 (1995); Bozeman Deaconess Foundation, 322 NLRB 1107, 1119 (1997); Circuit Wise,
306 NLRB 766, 767 (1992).
The General Counsel claims that in December 2008, Elisa Arias, a dispatcher, told a
group of about 15 to 20 employees that the people who were complaining to the Union “don’t
get any summer work.” This alleged statement, testified to by Uchofen, was not corroborated by
any other person. Moreover the evidence does not suggest that Arias was a supervisor within
the meaning of the Act. Although the dispatchers do communicate between Gillison and the
employees on the road, the evidence does not suggest that Arias or any other dispatcher is
authorized, on their own account, to speak about company policy. I therefore shall recommend
that this allegation be dismissed.
In mid December 2008, the Company asked its drivers and monitors to sign the following
letter:
To Whom It May Concern:
I, ___________ did choose the summer camp route that I drove for 2008. In no
way was I ever coerced or forced to do my summer camp route. Nor was I ever
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coerced or forced to do any summer camp route or school route for Respondent
bus company. I have always chosen, picked or accepted the assigned routes of
my own free will.
By December 2008, the Union had filed grievances regarding the Company’s alleged
failure to follow the seniority/bidding procedures in the contract. The reader may recall that by
this time, the Union had submitted these grievances to arbitration and its attorney had
requested information in preparation for an arbitration hearing. Therefore, there was, at this
point, an active dispute regarding the Union’s claims that the Company had failed to allow
employees to bid for the summer camp routes and that it had exempted certain routes from the
bids for the regular school routes. There was therefore the possibility that the Company could
be liable for damages if the Union could show that some employees suffered monetary losses
by being denied the opportunity to bid for the routes of their choice.
Given the situation as it existed as of mid December 2008 and for the same reasons as
described above with respect to the tool allowance letters, the Company’s attempt to have
employees sign statements that amount to “waivers,” constitutes “direct dealing” in violation of
Section 8(a)(1) & (5) of the Act.
f. Alleged interrogation by
Respondent’s attorney
The Respondent’s Counsel, Anthony Pirrotti, is not a specialist in labor law or in the
procedures of the National Labor Relations Board. As such, it would not surprise me if he
inadvertently ran afoul of the procedures set forth in Johnnie’s Poultry, 146 NLRB 770, 775
(1964) where the Board stated:
[T]he 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 mid or otherwise interfering with the rights of
employees.
In support of this allegation, the General Counsel called employee Reynaldo Gomez.
Gomez and employee Luis Maciera, received investigatory subpoenas to appear and testify at
the Board’s Regional office. When they asked Gillison what the papers were about, they were
told that they could go to Pirrotti’s office and ask him. They did so on May 8, 2009. When
Gomez was asked by the General Counsel what happened at the lawyer’s office, he testified
that Pirrotti did not ask him any questions.
For his own reasons, the Respondent’s counsel offered into evidence an affidavit given
to the Board by Gomez on May 13, 2009. And although, the General Counsel could have
objected on the grounds that this out of court statement was hearsay, he did not do so. Instead,
the General Counsel agreed that the affidavit should be admitted into evidence and in the
absence of objection, statements that otherwise would be precluded as hearsay, are admissible
for the truth of the matters asserted. The affidavit states:
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When we got to the lawyer’s office, he asked m how long I had been with the
company, if it paid the Union and if I picked my route in August. The lawyer did
not offer to accompany me to the appointment, did not take any notes and it was
a brief meeting. He did not ask me to report to him what happens at the
appointment. The lawyer did not tell me that the company would not take
negative actions or reprisals against me because of the appointment with the
Labor Department or my testimony.
I admitted the affidavit into evidence because there was no hearsay objection by any
party. The affidavit was executed five days after the meeting and its description of what took
place was not challenged by Pirrotti. In my opinion, the contents of the affidavit are more
reliable than the almost largely forgetful testimony that Gomez gave at the trial. As such, it is
my opinion, that the Respondent violated Section 8(a)(1) of the Act by interrogating Gomez
about the route picks in August, (which was a subject of dispute in the unfair labor practice
investigation), and by failing to give him the assurances required by Johnnie’s Poultry.
g. Negotiations for a New Contract; Withdrawal of Recognition;
and Unilateral Changes made after the Contract Expired
The existing labor agreement expired on June 30, 2009 and in anticipation of bargaining
for a new contract, Simino sent a letter to Tiktin on May 21, 2009 stating:
The collective bargaining agreement … will be expiring June 30, 2009. We are
available to start bargaining and propose that we schedule weekly meetings on
Mondays at noon, starting June 1, 2009….
The Union’s bargaining team will consist of Gil Hodge, Miguel Gonzalez, Joyce
Green, Victor Santos, Donna Turner, Yolanda Vergara, Cesar Uchofen and
myself.
Also on May 21, the Union sent another letter requesting information in relation to
bargaining. This letter stated;
In preparation for collective bargaining, TWU Local 100 is making the following
information request.
Current enrollment in any health insurance program(s) offered to employees in
the bargaining unit by type of coverage (individual, individual plus spouse, family,
etc) and the amount of the premium paid by the employee and the company for
each type of insurance in dollar amounts;
The most recent plan documents for such insurance program(s) including the
type of benefits covered, the cost of co-pays and other out of picket expenses;
The most recent plan documents for any health insurance programs offered to
management employees including the type of benefits covered, the cost of co-
pays and other out of pocket expenses;
Number of current employees in each job title, with a breakdown within each title
of the number of employees at top pay and successive six month steps;
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A list of all runs serving children with special needs and all monitors assigned to
these runs;
Any and all information on training and instruction provided to monitors serving
children with special needs in the last three years;
Invoices from Ardsley Bus Corporation to School Districts for all charters or other
separately invoiced activities performed by members of the bargaining unit for
the months of October 2008, November 2008, March 2009, April 2009 and May
2009;
All current contracts between Ardsley Bus Corporation and school districts with
invoices showing the monetary value of the current contracts.
All documentary information in possession of Ardsley Bus Corporation from
school districts regarding any extensions of contracts or the bidding process for
new contracts.
On June 1, 2009, union attorney Levelt wrote to the Company’s attorney, Pirrotti and
stated:
I will be representing Local 100 at the upcoming negotiations to modify the
collective bargaining agreement. We are available to start bargaining and
propose that we schedule weekly meetings on Mondays, starting June 8, 2009.
We propose to alternate between the Union’s Yonkers office … and Ardsley’s
offices.
On June 5, 2009, the Union by its attorney sent a follow-up letter to Pirrotti. In
substance this stated:
In order to begin negotiations for a new contract, the Union has been trying to
schedule a negotiation session. By letter of May 21, the Union offered June 1 as
the first date. When we did not hear back from Ardsley, I called you office on
May 28 about the June 1 date. Your secretary informed that you would not be
available.
By letter of June 1, the Union proposed to meet on June 8. When again, we did
not receive a response, I called your office yesterday to confirm the June 8 date.
Your secretary informed that you would get back to me. You still have not
contacted us. This leaves us no option but to assume that we will not be meeting
on June 8th.
The Union is now offering June 15 for a first negotiation, but we are also willing to
entertain dates that you want to propose…
By letter dated June 5, 2009, the Company by Pirrotti responded to Levelt’s letter and
stated as follows:
As you are aware, my client is in Israel and we adjourned the Arbitration Hearing
based upon his vacation schedule. He will be returning on June 14, 2009 and as
soon as he returns, I shall call you.
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However, in regard to your proposed negotiating committee, you of course
understand from the Arbitration… that we cannot permit Mr. Uchofen to be part
of any negotiating team because of his bias and because of the fact that my
client has had to call the police on no less than two occasions to remove him
from the business grounds.
Please advise immediately that you agree that Mr. Uchofen will be removed and
advise of the name of a substitute member of your negotiating team.
Contemporaneous with the above, there is evidence that some unnamed drivers,
sometime in late May or early June 2009, began to solicit employees to sign a petition to get rid
of the Union. It is not clear who did this or exactly when this activity began. But as it was
conducted in the yard on the Respondent’s property, it is unlikely that Gillison and Tiktin were
not aware of it. I do note, however, that there is little or no credible evidence that management
played any direct or indirect role in the solicitation of the petition. 12
So by early June 2009, the Company had not responded to the Union’s request for
bargaining information and had not responded to the Union’s requests for bargaining dates. By
letter dated June 5, Pirrotti informed the Union that the owner would be out of the country until
June 14 and further stated that it objected to the Union picking Uchofen to be on its negotiating
committee. To me this is beginning to look like the Company is trying to run out the clock until
the contract’s expiration date.
In a letter that is dated June 11, 2009, the Union, by Levelt, wrote to Pirrotti and stated
inter alia:
We decline your request to remove Mr. Uchofen from the negotiation team…. If
your request was inspired by a concern about maintaining civility during the
course of these negotiations, we share your concern and we hereby commit to
engage in these negotiations in a professional manner. We expect the same
commitment from your client.
Given the fact that your client will not be returning to the United States until June
14, I will assume that we will not be able to have a negotiation session on June
15. As the arbitration hearing scheduled for June 18 had been rescheduled, I
propose that we have our first session on Thursday June 18 at noon….
On some unspecified date, probably in mid-June 2009, a group of about seven
employees visited the Board’s regional office and spoke to attorney Colleen Breslin. It seems
that they sought to file a decertification petition and presented a petition signed by about 190
employees that stated they did not wanted to be represented by the Union. 13 They apparently

12 The General Counsel produced a single witness, (out of more than 200 employees), who gave
uncorroborated testimony to the effect that Rosa Villela and Elisa Arias asked several employees on one
occasion if they had signed the petition. As the evidence does not establish that either is a supervisor
within the meaning of Section 2(11) of the Act or that such a question was within their authority as
employees of the Respondent, I do not conclude that this single transaction violated the Act. Nor would I
view this one time question as being coercive under Rossmore House, 269 NLRB 1176 (1984).
13 At the top of each page of the petition there is the following language in English and Spanish:
We the undersigned wish to have the present union, T.W.U. Local 100 removed from Ardsley
Bus Company. The reason for this request is that this union is only taking out money weekly and
Continued
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were told that because the contract’s expiration date was June 30, they could not file a
decertification petition at that time because under the Board’s contract bar rules, this was the
“insulated period” and that the proper time to file a decertification petition would be after the
contract expires.14
On or about June 16, 2009, these employees wrote a letter to the Company describing
their attempt to file a decertification petition. And although no one actually testified about the
visit to the Regional Office, the description in the letter, (albeit hearsay), sounds basically
consistent with Board law and procedure. Assuming that the Company had nothing to do with
the solicitation of signatures, it would seem that this was the first time that the Company was
made aware that many or most of its employees had, in fact, signed a petition to oust the Union.
At this point, I wish to point out that notwithstanding the fact that I received the signed
petition into evidence no one was called to testify about who, when or how the signatures were
obtained. Nor was I presented with a group of authenticated exemplar signatures with which to
make a signature comparison. I simply have no evidence to authenticate that the signatures on
the petition are genuine. Maybe there are. But there is no evidence to demonstrate that they
are.
The parties met for the first and last time on June 18, 2009. At this rather brief meeting,
the Union orally presented a long list of demands. When Pirrotti asked for a written list, the
Union’s representative said that they would send a copy when they had been finalized. After
repeating his request for a written list of the Union demands, the Company left the meeting. In
a letter dated June 18, Pirrotti stated:
Mr. Hodge acted as Chairman and proceeded to read from a list that he had in
his possession, as well as a copy of which you had and Mr. Uchofen had,
purporting to be a list of demands. I asked you for a copy of the list and you
refused to provide same, saying they had yet to be finalized. After listening to
Mr. Hodge’s oral demands I asked again for a copy of the demands and you
repeated to me that the list had yet to be finalized.
At 11:00 a.m. Mr. Hodge completed his litany of demands and I again invited you
to send a list of your demands in writing and including which of the demands
were exploratory so that I would be able to consult with my client.
Before addressing the demands, please furnish me with the copies of contracts
which you have entered into with other bus companies so that we can determine
whether the demands that you are making are reasonable.
On June 18, 2009, Union counsel Levelt sent a letter to Pirrotti reiterating her previous
request for information and forwarding a written set of union demands. This stated:
_________________________
causes huge problems between the company and the employees. The union has raised the
weekly dues twice within one year. We understood that the dues were to remain the same as the
length of the contract, which is three years.
14 Under the Board’s contract bar rules, a petition cannot be timely filed unless it is filed within 90 to
60 days before the expiration date of a contract having a duration of three years or less, or until after the
contract expires if no new contract has been signed. See Chapter 9 of the Board’s Outline of Law and
Procedure in Representation cases.
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Pursuant to our first negotiation session, I am herewith submitting our demands
in writing. As you will see, we already have specific language prepared for
demands numbers 8, 22 and 41.
On May 21, 2009, the Union sent you an information request in order to prepare
for collective bargaining. Today Mr. Gillison informed us that Ardsley does not
offer health benefits to members of the bargaining unit. Otherwise, we have not
yet received a response to the information request. We hereby reiterate and
supplement the information request as follows: [Essentially repeating the request
of May 21, 2009 and including a request for any insurance programs offered to
management employees.] 15
Thereafter, by letter dated June 21, 2009, the Union’s attorney sent another letter to
Pirrotti as follows:
This is to confirm the conversation we had yesterday. I asked you for a date to continue
contract negotiations. You responded that you did not want to set a date. I asked
whether you were refusing to negotiate. You said that you had seen a decertification
petition signed by 193 or 196 employees out of 219 employees … and that you therefore
needed to confer with your client because you were afraid that it would be an unfair labor
practice charge to negotiate with the Union when there was a decertification petition
pending.
We are hereby renewing our offer to conduct a negotiation session on Thursday, June
25 any time of the day. We are enclosing an agreement to extend the collective
bargaining agreement for signature…
The Union’s letter dated June 21, 2009, generated no response from the Company and
the Respondent did not thereafter offer to resume negotiations. Instead, soon after the contract
expired, the Company made a number of changes in its practices, many of which were contrary
to the terms and conditions of employment as set forth in the last labor contract. There is,
therefore, no question but that after June 30, 2009, the Respondent de facto withdrew
recognition from the Union and determined that it was free to establish, change and/or modify,
any and all terms and conditions of employment, without bargaining with the Union.
Among the changes made after June 30 were the following.
1. The Respondent did not allow union representatives to attend the
seniority/bidding procedure that took place in August for the 2009/2010
regular school bus routes.
2. The Respondent froze the anniversary wage increases for employees.
3. The Respondent excluded wage increases for casual employees.
4. The Respondent imposed new seniority rules for charter routes

15 Attached to this letter is a list of bargaining demands that consists of about 41 items.
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5. The Respondent changed a minimum guaranteed annual work week with
paid holidays.
6. The Respondent imposed new termination rules on employees for
absences.
7. The Respondent changed the method by which it calculated route hours
and daily work hour guarantees.
The facts described above lead to a number of interrelated legal questions. Did the
Company refuse to furnish information relevant to the bargaining process? Did the Respondent
violate the Act by refusing to meet with representatives chosen by the Union? Did the
Respondent bargain in good faith? Did the Respondent lawfully withdraw recognition from the
Union or was it legally entitled to do so because the Union lost its majority status? Did the
Respondent violate the Act by unilaterally changing the conditions of employment after the
contract expired, or was it legally entitled to do so because of the Union’s alleged loss of
majority status?
I have already described the law dealing with cases involving information requests. As
stated, the general rule is that parties to a collective bargaining relationship are required to
furnish, upon request, information that is relevant for bargaining. In the context of contract
bargaining, information that describes the employees, wages, hours, and other terms and
conditions of employment is presumptively relevant and must be provided. There are, however,
two exceptions that are relevant in this case. First, unless a company asserts an inability to
pay, financial information is precluded from disclosure. NLRB v. Truitt, 351 US 149 (1956).
Second, unless shown to be relevant, information regarding persons outside the bargaining unit
is not deemed to be relevant. Sheraton Hartford Hotel, 289 NLRB 463 (1984). Cf. The New
York Presbyterian Hospital, 354 NLRB No. 5.
In my opinion, the Respondent therefore violated Section 8(a)(5) of the Act by refusing to
furnish the information requested in the Union’s May 21, 2009 letter except for invoices showing
the monetary value of the Respondent’s current contracts. As to the Union’s June 21st letter,
the Respondent is not required to turn over documents or information relating to insurance
programs offered to its management employees.
The Act requires each side to a collective bargaining agent to bargain with the other
side’s chosen representatives. Accordingly, one party cannot legally refuse to bargain because
it doesn’t like who the other party has chosen as its bargaining representatives. The only
exception is if it is demonstrated that the selection of a particular individual or individuals would
bring such ill will to the bargaining table so as to make good faith bargaining impossible. Pan
American Grain Co., 343 NLRB 205, 206 (2004) citing KDEN Broadcasting Co, 225 NLRB 25,
35 (1976).
In the present case, the Respondent, in its June 5 letter, objected to Uchofen being
placed on the Union’s bargaining committee and stated that he had to be replaced. The
Respondent cited Uchofen’s alleged misconduct for its position. Notwithstanding my earlier
conclusion that Uchofen’s discharge on January 21, 2009 was not unlawful because he was not
engaged in protected activity, his conduct on that or any other occasion was not so egregious
as to warrant the Respondent’s refusal to accede to the Union’s choice of having him as one of
the people on its bargaining committee. Accordingly, I conclude that in this respect, the
Respondent violated Section 8(a)(1) and (5) of the Act.
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The Respondent contends that based on the petition described above, it had the legal
right to withdraw recognition from the Union. It therefore argues that it could legally suspend
bargaining after June 18, 2009. It also contends that after the contract expired, it could
unilaterally make any changes to the terms and conditions of employment that it liked.
When there is an existing bargaining relationship between a union and an employer,
whether by Board conducted election or by voluntary recognition, the Union is presumed to
have majority support. Ray Brooks v NLRB, 348 U.S. 96 (1954); Royal Coach Lines, 282 NLRB
1037, 1038 (1987).
Having obtained recognition, an incumbent union, if it enters into a collective bargaining
agreement with an employer, is entitled to an irrebutable presumption of majority status during
the life of the contract. Hajoca Corp., 291 NLRB 104 (1988); Royal Coach Lines, supra. After
the contract expires, an incumbent union is entitled to a presumption of continued majority
support. Laidlaw Waste System Inc. 307 NLRB 1211 (1992). This means not only that the
Employer may not, without violating Section 8(a)(5) of the Act, withdraw recognition during the
life of the contract, but it also means that no rival union may file a petition for an election with the
Board during most of the life of the contract. (To the extent that the contract does not exceed
more than 3 years in duration). To balance the interest between labor relations stability and
employee free choice, the Board established certain "contract bar" rules in Delux Metal
Furniture Co., 121 NLRB 995 (1958). Without describing all the rules, suffice it to say that
where there exists a valid contract between a company and union A, another union will be
precluded from filing an election petition for the same group of employees except 90 to 60 days
before the expiration of the contract, (or if the contract is more than 3 years, 90 to 60 days
before the 3 year period), or after the contract expires if no new contract is reached by the
Employer and the incumbent union. Similarly, an employer petition (RM) or employee petition
(RD) to oust an incumbent union can only be filed within the time frame described above.
During the hearing, the Respondent vehemently argued that the Regional Office
engaged in misconduct by not allowing employees to file a decertification petition in June 2009.
But in light of the legal standards described above, any such petition would have been untimely
filed as the contract was set to expire on June 30, 2009 and the employees visited the Regional
office within the insulated period which starts 60 days before the expiration date and runs
through to the expiration date of the contract. (It is my understanding that a decertification
petition was subsequently filed after the contract expired and that it is being held in abeyance
pending the outcome of this case).
In Levitz Furniture, 333 NLRB 717 (2001), the Board held that where there was an
established bargaining relationship, a union enjoys a presumption of majority status and this
may only be overcome if the Employer can demonstrate by objective evidence, that there was
an “actual loss of support” by the incumbent union. The Board also held that an employer acts
at is peril if it is wrong. In Levitz, the Board changed a standard which had previously allowed
an employer to withdraw recognition from an incumbent union, in the absence of a contract or
after a contract expires, based on a “good faith belief” that the Union had lost its majority status.
See also The Raymond F. Kravis Center for the Performing Arts, 351 NLRB 143 (2007).
In addition, the fact that a majority of the bargaining unit may have indicated their
preference for non-representation is not necessarily controlling if the evidence shows that there
is a probable causal relationship between an employer’s previous unfair labor practices and a
union’s loss of support. Atlas Refinery, Inc; 354 NLRB No. 120; Penn Tank Lines, 336 NLRB
1066, 1067-1068 (2001); Lee Lumber & Building Material Corp., 322 NLRB 175, 177 (1996). In
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Master Slack, 271 NLRB 78, 84 (1984), the Board stated that the factors to determine whether a
causal relationship exists between unfair labor practices and employee disaffection are:
(1) the length of time between the unfair labor practice and the withdrawal of
recognition; (2) the nature of illegal acts, including the possibility of their
detrimental or lasting effect on employees; (3) any possible tendency to cause
employee disaffection from the union; (4) the effect of unlawful conduct on
employee morale, organizational activities and membership in the union.
In my opinion the evidence in this case demonstrates that the Respondent’s unfair labor
practices from 2008 through June 2009 tended to have the probable effect of undermining the
Union in the eyes of the bargaining unit employees. I would therefore view these unfair labor
practices as a proximate cause for any disaffection that employees may have had with the
Union. In this respect, I have concluded, inter alia; (a) that in March 2008, the Respondent
suspended Cesar Uchofen because he sought union representation in relation to an interview
that he reasonably believed could have led to disciplinary action; (b) that in the spring and
summer of 2008, the Respondent failed to furnish relevant information so that the Union could
carry out its contract administration functions; (c) that in the summer of 2008, the Respondent,
contrary to the explicit terms of its contract, did not allow its employees to bid by seniority for
summer camp routes; (d) that in August 2008, the Respondent excluded certain regular school
bus routes from the bidding process; (e) that the Respondent, on multiple occasions in 2008
and 2009, had failed and refused to furnish information relevant to potential and actual
grievances; (f) that in late October 2008, the Respondent refused to meet with the Union
regarding pending grievances; (g) that in November 2008, the Respondent by its manager,
physically assaulted the union’s shop steward; (h) that since May 2009, the Respondent has
failed to provide information relevant to bargaining for a new contract; and (i) that in June 2009,
the Respondent refused to bargain with representatives chosen by the Union.
Given this set of unfair labor practices, I conclude that the alleged loss of majority status
was likely caused by the Respondent’s course of illegal conduct. I therefore conclude that the
Respondent cannot withdraw recognition and that by doing so it violated Section 8(a) (1) and (5)
of the Act.
Moreover, it is my opinion that the Respondent has not met its burden of proving that the
Union actually lost its majority status. Although it is true that the petition relied upon by the
Respondent has about 190 signatures, there was no proof that the people whose signatures are
contained on it actually signed the petition. Witnesses were not called to testify that they signed
the petition. No witnesses were called to testify that they saw people sign the petition or that
they handed out the petition and received it back from individuals who signed the document. No
documents containing authenticated signatures were offered as a means by which I could make
a signature comparison.
In cases tried under NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), where the
General Counsel is seeking to impose, without an election, a bargaining order in favor of a non-
incumbent union based on an allegation that the Employer’s conduct has made a fair election
improbable, the General Counsel is required to show that at some relevant period of time, the
Union had obtained majority status. This necessary element is shown by evidence that a
majority of the employees in an appropriate bargaining unit have signed either cards or petitions
authorizing the Union to represent them for purposes of collective bargaining. It is axiomatic
that as part of this proof, the General Counsel must establish the authenticity of the signatures
And this can be done by the testimony of the signer, the testimony of the solicitor, the testimony
of a person who witnessed the signature, the testimony of a person who handed a card to an
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individual and received it back with a signature, or by a comparison of signatures to an
authenticated exemplar.
If majority status requires proof as to the authenticity of authorization cards or petitions in
a case where the General Counsel seeks to impose a bargaining order on behalf of a non-
incumbent union in the absence of an election, it is logical that the same element of proof would
be required in a case where an employer is seeking to withdraw recognition from an incumbent
union in the absence of an election. This is simply the other side of the same coin. That is, if an
employer asserts that it is legally entitled to withdraw recognition from an incumbent union, it
must be required to prove by objective evidence that the Union has lost its majority status. And
what is required to prove majority loss should be the same as in cases where the General
Counsel must prove that a non-incumbent union has gained majority status. Since proof of
majority status in the later case requires evidence as to the authentication of signatures on
cards or petitions, it seems to me that proof of majority loss should require the same standard of
proof.
Having concluded that the Respondent violated the Act by withdrawing recognition from
the Union in August 2009, it follows that the Respondent was not free to alter, change of modify
the existing terms and conditions of employment, without first bargaining with the Union to a
legitimate impasse. See for example, Hinson v. NLRB, 428 F.2d 133 (8th Cir. 1970); Fairhaven
Properties, d/b/a Central Management Co., 314 NLRB 763, 768 and 781 (1994) and The
Raymond F. Kravis Center for the Performing Arts, 351 NLRB 143 (2007).
The Respondent argues that inasmuch as the labor contract expired, it could do what it
liked. That, however, is not the law. In Allied Signal Inc., 330 NLRB 1216, 1227, (2000), the
Administrative Law Judge quoting from Litton Industries, stated:
This distinction between the legal status of a contract and the duty to maintain
terms and conditions of employment is discussed at length by the Supreme Court
in Litton: Although after expiration most terms and conditions of employment are
not subject to unilateral change, in order to protect the statutory right to bargain,
those terms and conditions no longer have force by virtue of the contract. See
Office and Professional Employees Ins. Trust Fund v. Laborers Funds
Administrative Office of Northern California, Inc., 783 F.2d 919, 922 (CA9 1986)
(“An expired [collective bargaining agreement] . . . is no longer a `legally
enforceable document.” (citation omitted)); cf. Derrico v. Sheehan Emergency
Hosp., 844 F.2d 22, 25–27 [127 LRRM 3201] (CA2 1988) (Section 301 of the
LMRA 29 U.S.C. § 185, does not provide a federal court jurisdiction where a
bargaining agreement has expired, although rights and duties under the expired
agreement “retain legal significance because they define the status quo” for
purposes of the prohibition on unilateral changes).
The difference is as elemental as that between Nolde Bros. and Katz. Under
Katz, terms and conditions continue in effect by operation of the NLRA. They are
no longer agreed-upon terms; they are terms imposed by law, at least so far as
there is no unilateral right to change them. As the Union acknowledges, the
obligation not to make unilateral changes is `rooted not in the contract but in
preservation of existing terms and conditions of employment and applies before
any contract has been negotiated.’ Brief for Respondents 34, n. 21. Katz
illustrates this point with utter clarity, for in Katz the employer was barred from
imposing unilateral changes even though the parties had yet to execute their first
collective-bargaining agreement.
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Our decision in Laborers Health and Welfare Trust Fund v. Advances Lightweight
Concrete Co., Inc., 484 U.S. 539 (1988), further demonstrates the distinction
between contractual obligation and post expiration terms imposed by the NLRA.
There, a bargaining agreement required employer contributions to a pension
fund. We assumed that under Katz the employer’s failure to continue
contributions after expiration of the agreement could constitute an unfair labor
practice, and if so the Board could enforce the obligation. We rejected, however,
the contention that such a failure amounted to a violation of the ERISA obligation
to make contributions ‘under the terms of a collectively bargained agreement . . .
in accordance with the terms and conditions of . . . such agreement.’ 29 U.S.C. §
1145. Any post-expiration obligation to contribute was imposed by the NLRA, not
by the bargaining agreement, and so the District Court lacked jurisdiction under
§502(g)(2) of ERISA, 29 U.S.C. § 1132(g)(2), to enforce the obligation. [501 at
206–207.]
There is no dispute that after the labor contract expired on June 30, 2009, the
Respondent, without notice to or offering to bargain with the Union, made the unilateral changes
in the terms and conditions of employment that are described above. I therefore conclude that
in this respect, the Respondent violated Section 8(a)(1) and (5) of the Act.
Conclusions of Law
1. By suspending Cesar Uchofen because he sought union representation in relation to
an interview that he reasonably believed could have led to disciplinary action, the Respondent
violated Section 8(a)(1) and (3) of the Act.
2. By failing to furnish relevant information so that the Union could carry out its contract
administration functions in relation to the seniority bidding process for routes, the Respondent
has violated Section 8(a)(1) and (5) of the Act.
3. By not allowing employees to bid for the summer school routes in 2008, the
Respondent has violated Section 8(d) and 8(a)(1) and (5) and of the Act.
4. By excluding certain regular school bus routes from the bidding process in 2008, the
Respondent has violated Section 8(d) and 8(a)(1) and (5) of the Act.
5. By failing and refusing to furnish to the Union, information relevant to potential and
actual grievances, the Respondent has violated Section 8(a)(1) and (5) of the Act.
6. By refusing to meet with the Union regarding pending grievances, the Respondent
has violated Section 8(a)(1) and (5) of the Act.
7. By physically assaulting the union’s shop representative, the Respondent has
violated Section 8(a)(1) of the Act.
8. By failing to provide information relevant to bargaining for a new contract, the
Respondent has violated Section 8(a)(1) and (5) of the Act.
9. By refusing to bargain in good faith with representatives chosen by the Union, the
Respondent has violated Section 8(a)(1) and (5) of the Act.
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10. By withdrawing recognition from the Union in the absence of a demonstrated
showing that the Union has lost its majority status, the Respondent has violated Section 8(a)(1)
and (5) of the Act.
11. By unilaterally and without bargaining with the Union, making changes in the terms
and conditions of employment after its collective bargaining agreement expired, the Respondent
has violated Section 8(a)(1) and (5) of the Act.
The general counsel asserts that although it would not affect the remedy, there should
also be a finding that certain of the actions which violated Section 8(a) (5) should also be found
to have violated Section 8(a)(3) of the Act. The General Counsel asserts that these actions, in
addition to being unlawful refusals to bargain were also motivated by anti-union considerations.
I agree with the General Counsel that a conclusion that these 8(a)(5) violations would
also be 8(a)(3) violations would not be necessary for a remedy. Moreover, I cannot say that the
General Counsel has proven that these actions, including the failures to comply with the
contract, were motivated by anti-union considerations as such. The contract changes that the
Respondent made were illegal because they violated the bargaining obligation provisions of the
statute as defined in Section 8(d); not because the decisions, of themselves, made no economic
sense. What company would not wish to be free from constraints on its ability to assign work
without having to consider seniority or construct a complicated bidding procedure to accomplish
that result? That goal may make eminent economic sense from the Company’s point of view.
Nor am I inclined to view the direct dealing allegations as being motivated by anti-union
animus per se. In those cases the Company, faced with the prospect of being held liable for
breaches of the contract, sought to go around the union and attempt to mitigate or avoid
contract liability by gaining “waivers” from the employees affected. I have concluded that this
conduct was illegal under Section 8(a)(1) and (5) and I see no purpose served by finding that
the same conduct violated Section 8(a)(3). 16
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.
With respect to Cesar Uchofen, I have concluded that his first suspension in March 2008
was violative of Section 8(a)(1) and (3) of the Act. Nevertheless, I have concluded that his later
discharge on January 21, 2009 did not violate the Act. Since the Respondent had rescinded the
original suspension and made Uchofen whole for that action, there is no backpay owing to him.
Moreover, while the Respondent can be ordered to rescind the original suspension from its
personnel files, I can’t order it do so with respect to the January 2009 discharge because in that
respect, it acted legally.
Having determined that the Respondent violated the Act by making unilateral changes in
the terms and conditions of employment as they existed as of June 30, 2009, I shall
recommend that the employees within the bargaining unit, be made whole, with interest, for any

16 The finding that the Respondent failed to meet with the Union as to two grievances at step 2 of the
grievance procedure is relatively trivial in the context of this entire case. I see no point in making a finding
that these transactions violated Section 8(a)(3) in addition to being a violation of Section 8(a)(1) and (5).
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difference in earnings or benefits resulting from those changes. Interest should be computed in
the manner set forth in New Horizons for the Retarded, 283 NLRB 1173 (1987). 17
I have also concluded that the Respondent violated the Act by modifying its collective
bargaining agreement with respect to the seniority/bidding provisions as they related to the
summer camp routes and the 2008-2009 regular school bus routes.
I suspect that a backpay determination for these seniority violations will not be simple.
From what I understand to be the case, it will be necessary to ascertain which, if any
employees, would have decided to make a bid and thereafter would have been successful in
their bid for certain routes based on their seniority vis a vis the persons who actually were
assigned to do the particular routes. Assuming that one could determine which employees
would be eligible for backpay awards, it perhaps would be possible to find out how much money
that individual would have earned if he or she had successfully been able to bid for a different
route than the one that was obtained. (Obviously, if the potential successful bidder received no
route at all, then a backpay determination for that individual, assuming that he or she would
have bid in the first place, would be relatively simple).
Moreover, the whole question of calculating backpay for these situations is presently
before the contract arbitrator, who given his assumed experience in this industry, might have
greater expertise in doing this job.
Nevertheless, it seems to me that by not complying with the contract terms in relation to
the seniority/bidding process for the summer camp and regular school bus routes, there is
potentially an amount of money due to some employees. I shall leave that to any compliance
proceedings and any money owed should be computed with interest as described above.
The Respondent having unlawfully withdrawn recognition must be ordered to bargain
affirmatively with the Union and should, upon request, resume negotiations for a new contract to
supersede the agreement that expired on June 30, 2009.
In addition, the Respondent should be compelled to furnish to the Union all of the
information requested, (except for information explicitly excluded by me). This information is
deemed not only necessary for the process of bargaining for a new contract but also for
determining any remedial action that might be sought in the ongoing arbitration proceedings and
for any future investigation of or prosecution of contract grievances.
Finally because the Respondent is a repeat offender, having failed to comply with the
terms of a previously executed settlement agreement, I shall recommend the issuance of a
broad Order.

17 The General Counsel argues that all interest should be compounded on a quarterly basis. This is
not current law and this request is denied.
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On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended 18
ORDER
The Respondent, Ardsley bus Corporation Inc., a/k/a Gene’s Bus Company, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from
(a) Suspending or otherwise disciplining employees because they seek union
representation in relation to interviews that they reasonably believe could lead to disciplinary
action.
(b) Refusing to furnish to the Union information relating to the investigation or processing
of grievances.
(c) Refusing to meet with union representatives regarding pending grievances.
(d) Refusing to allow employees to bid for the summer routes in 2008.
(e) Excluding certain regular school bus routes from the seniority/bidding process in the
summer of 2008.
(f) Physically assaulting the union’s shop representative.
(g) Coercively interrogating employees about their union adherence or activities or about
the Board’s investigation of unfair labor practices.
(h) Failing to provide information relevant to bargaining for a new contract.
(i) Refusing to bargain in good faith with representatives chosen by the Union
(j) Withdrawing recognition from the Union in the absence of a demonstrated showing
that the Union has lost its majority status.
(k) Unilaterally and without bargaining with the Union, making changes in the terms and
conditions of employment after its collective bargaining agreement expired on June 30, 2009.
In any other manner, interfering with, restraining or coercing employees in the rights
guaranteed to 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 of this Order, remove from our files any reference to the unlawful
suspension of Cesar Uchofen in March 2008 and within three days thereafter, notify him in

18 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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writing, that this has been done and that the suspension will not be used against him in any
way.
(b) Except as explicitly excluded in my Decision, furnish to Transport Workers Union of
Greater New York, Local 100, AFL-CIO, upon its request, the information sought in the Union’s
letters dated October 21 and December 8, 2008 and May 21 and June 18, 2009.
(c) Upon request, recognize and bargain collectively with the Union as the exclusive
representative of its employees with respect to wages, hours, and other terms and conditions of
employment, and if an agreement is reached, embody such agreement in a signed document.
The appropriate bargaining unit consists of
All regular full and regular part-time school bus and van drivers, monitors, mechanics,
cleaners and fuelers employed by the Respondent but excluding office clericals and
guards and professional, confidential and supervisory employees as defined by the Act.
(d) Rescind all changes made to the terms and conditions of employment made after
June 30, 2009 including any changes or modifications made to the seniority/bidding provisions
of the labor contract insofar as summer camp routes and regular school bus routes.
(e) Make employees whole, with interest for the loss of any earnings or benefits resulting
from the failure to comply with the terms of the seniority/bidding provisions described above or
as a result of any changes in the terms and conditions of employment made after June 30,
2009.
(f) 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.
(g) Within 14 days after service by the Region, post at its facilities in Ardsley, New York,
copies of the attached notice marked “Appendix B.” 19 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 immediately upon receipt 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, or sold the business or the facilities involved herein, 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 Respondents at any time since March 20,
2008.

19 If this Order is enforced by a Judgment of the 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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(h) 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.
IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.
Dated, Washington, D.C.
_____________________
Raymond P. Green
Administrative Law Judge
JD(NY)–06–10
Appendix A
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
ARDSLEY BUS CORPORATION INC.,
a/k/a GENE’S BUS COMPANY
and Case Nos. 2-CA-38713
2-CA-39049
TRANSPORT WORKERS UNION OF 2-CA-39376
GREATER NEW YORK, LOCAL 100, AFL-CIO 2-CA-39467
ORDER REGARDING PROPOSED
AMENDMENTS TO COMPLAINT
Immediately prior to the close of the hearing, and after the General Counsel, the
Charging Party and the Respondent had rested,1 Mr. Rose on behalf of the General Counsel,
stated that he wanted to move to amend the Complaints to have the pleadings conform to the
proof. I told him that I was not going to approve such an open ended amendment and that if he
wished to make amendments, they needed to be specific. When Counsel started to recite the
proposed amendments, (none of which were simply amendments to names, dates or places), it
became apparent that these were substantial and new allegations that were not plead in the
original complaints. It was also clear to me that except for one of the proposed amendments,
these new allegations were not fully litigated and would likely require a postponement of the trial
so that additional evidence could be presented. I therefore required the General Counsel to
submit to me, in writing, these proposed amendments and to serve them simultaneously on the
Respondent. At the hearing, the Respondent objected to the proposed amendments
contending inter alia, that they were too late and would be burdensome. 2
By letter dated October 29, 2009, Mr. Rose submitted a corrected Motion to Amend the
Complaints. Thereafter, on November 9, 2009, the Respondent submitted a Memorandum of
Law in Opposition to the Proposed Amendments. The proposed amendments are as follows:
1. That in or about October 2008, the Respondent, by Elisa Arias, in its dispatch office,
threatened an employee that the Respondent was withholding work from him because of his
Union activities.
The General Counsel states that this proposed amendment is based on the testimony of
Cesar Uchofen at pages 960 to 962 to the effect that Elisa Arias, an alleged agent, told him that
he was not getting charter or other extra work “because he is a union person.”
2. That on or about October 8, 2008, the Respondent violated Sections 8(a)(1), (3) and
(5) when Thomas Gillison bypassed the Union and dealt directly with employees in the unit, by

1 Neither the Charging Party nor the Respondent chose to call any witnesses.
2 The Respondent is a relatively small enterprise and in my opinion, an extended hearing in these
cases imposes a substantial burden on its operations; not only as to the cost of litigation, but also in terms
of the time spent by management at the hearing and away from their normal business.
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requiring employees to meet with him outside the presence of their union representative about
grievances that they submitted to their union representative.
The General Counsel states that this proposed amendment is based on the testimony of
Cesar Uchofen at pages 904 to 908 to the effect that Mr. Gillison met with employees on
October 8, 2008 to discuss grievances which Uchofen and Gillison had earlier agreed to discuss
together with employees on October 9, 2009.
3. That in or about March 2009, the Respondent by Rosa Villela, an alleged agent,
solicited an employee to sign a document to decertify the Union.
The General Counsel states that this proposed amendment is based on the testimony of
Juventino Lopez to the effect that Rosa Villela approached him in the garage and asked him to
sign a document to decertify the Union.
4. That on or about September 1, 2009 made various unilateral changes to the terms
and conditions of employment of its employees including:
(a) Implementing a freeze on employee anniversary date wage increases;
(b) Excluding casual employees from wage increases;
(c) Implementing rules covering employee performance of charter work;
(d) Implementing a structure of paid holidays and vacations in place of annual
minimum numbers of employee work weeks;
(e) Changing the criteria for discharges for absences; and
(f) Imposing a method of calculating employee route hours and daily work hour
guarantees.
The General Counsel bases this proposed amendment on the testimony of Thomas
Gillison to the effect that General Counsel Exhibit 19 represents company policies put into effect
for all employees on September 1, 2009 and that the provisions cited above constitute unilateral
changes in the terms and conditions of employment that the employees enjoyed up until that
date. In this regard, the General Counsel cites to various provisions of the collective bargaining
agreement that expired on June 30, 2009.
Section 102.17 of the Board’s Rules and Regulations deals with amendments to
Complaints and states inter alia;
Any such complaint may be amended upon such terms as may be deemed
just, prior to the hearing, by the Regional Director issuing the complaint; at the
hearing and until the case has been transferred to the Board pursuant to
section 102.45, upon motion, by the administrative law judge designated to
conduct the hearing; and after the case has been transferred to the Board
pursuant to section 102.45, at any time prior to the issuance of an order based
thereon, upon motion, by the Board. 3
_______________________
3 See Sheet Metal Workers Local Union No. 91 (The Schebler Company), 294 NLRB 766, 774-775
for a discussion of what constitutes “just” in the context of allowing an amendment to a Complaint. See
also Henry Bierce Co. v. NLRB, (6th Cir. 1994), 146 LRRM 2419.
JD(NY)–06–10
The proposed amendments numbered 1 and 2 both involve conduct that allegedly
occurred in October 2008 and both are based on the testimony of Cesar Uchofen, who at the
time was an employee of the Company and the Shop Chairman for the Union.
I note that the investigation of these cases commenced in March 2008 and involved
many charges and amended charges. In relation to events occurring in October 2008, I note
that charges and/or amended charges were filed on November 24, 2008, January 15 and 23,
March 26, April 30, May 29, July 9 and August 20, 2009. Moreover, the Regional Office, during
the investigation of the charges, interviewed and took five affidavits from Mr. Uchofen. It is
thereby somewhat remarkable that the allegations in these two proposed amendments were
first “discovered” only after the trial in this case commenced.
The General Counsel proposes to amend the Complaint to allege that in October 2008,
Elisa Arias told Cesar Uchofen that he was not getting charter or other extra work “because he
is a union person.” Apart from the possibility that his testimony on this point might be a recent
fabrication, 4 this allegation has not been fully litigated and the Respondent would have the right
to further cross examine Mr. Uchofen about this issue and to present Elisa Arias or other
persons to testify about the alleged transaction.
Given the fact that the General Counsels have rested their case, the amount of time that
has already gone into the processing of these cases, the fact that this allegation could or should
have been discovered before the trial started and the burden that would be imposed upon the
Respondent to litigate this new allegation, I am going to deny the General Counsels’ Motion in
this regard.
The General Counsel proposes to amend the Complaint to allege that on October 8,
2008, Thomas Gillison bypassed the Union and dealt directly with employees, by requiring
employees to meet with him outside the presence of their union representative about grievances
that they submitted to their union representative.
The evidence relied on by the General Counsel, (some of which is hearsay), essentially
shows that one day prior to a meeting planned to take place on October 9, 2009 to discuss a
grievance, Gillison may have talked to some employees to discuss a pending grievance. But
there was no evidence to establish that any employees were “required” to discuss such a
grievance with Gillison. If I permitted the General Counsel to amend the Complaint in this
regard, I would have to allow the Respondent to put on witnesses regarding this alleged incident
which appears nowhere in any of the Complaints and which has not been fully litigated.
For the same reasons set forth above, I am going to deny the General Counsel’s Motion
in this respect.
The General Counsel proposes to amend the Complaint to allege that in March 2009,
the Respondent by Rosa Villela, solicited an employee to sign a document to decertify the
_______________________
4 The Consolidated Complaint in Case Nos. 2-CA-38713 et al, alleges that Mr. Uchofen was
discriminatorily discharged in January 2009. One would imagine that this alleged conversation, being not
only an independent violation of Section 8(1)(1) but also an important element for establishing anti-union
animus, would have been mentioned by Uchofen in at least one of his many affidavits and would have
found its way into one of the Consolidated Complaint issued on June 30 and September 11, 2009. Nor
does such an allegation appear in when on October 13, 2009, the General Counsel served a Notice of
Intention to Amend the Complaint.
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Union. As noted above, this proposed amendment is based on the testimony of Juventino
Lopez to the effect that Rosa Villela approached him in the garage and asked him to sign a
document to decertify the Union.
The testimony of Juventino Lopez was fairly confused. He testified that in March he was
first approached by another employee of the Company who asked him to sign a petition for the
purpose of getting rid of the Union and that he refused. Lopez testified that about two weeks
later, Rosa Villela, who he understood was someone who worked in the office, approached him
and asked him to sign a paper that had some other names on it. He testified that he asked her
if this was the same paper to get rid of the Union and she said that it was not. According to
Lopez, he could not say if the paper that was presented to him by Villela had any printed words
at the top. (The petition that was put into evidence as Respondent Exhibit 6(b) has a paragraph
at the top of each page, printed in Spanish and English, which states that the signatories do not
wish to be represented by the Union).
I am going to deny the General Counsel’s Motion to Amend the Complaint in this regard.
This new allegation that a company supervisor and/or agent solicited employees to sign a
petition to decertify the Union was not corroborated by any other person and was not supported
by any other probative evidence. And the testimony of Lopez would not, in my opinion, support
such an allegation. Lopez could not state that the document he signed was the same type of
document that appears in Respondent Exhibit 6(b) and he admittedly states that Villela denied
that the purpose of the document was to get rid of the Union.
The General Counsel proposes to amend the Complaint in Case No. 2-CA-39376 that
was issued on October 13, 2009 to allege that the Respondent on or about September 1, 2009,
made various unilateral changes to the terms and conditions of employment of its employees.
The theory of this amendment rests on the proposition that even though the 2006 to
2009 contact expired on June 30, 2009, the terms of that agreement continue in effect until the
parties bargain to a valid impasse; a new contract is reached; or the Respondent is legally
entitled to withdraw recognition. Under this theory, the Respondent cannot unilaterally change
the existing terms and conditions of employment without first bargaining with the employees’
bargaining representative. And the existing terms and conditions are defined, with one or two
exceptions not present here, by the terms of the expired contract. Hen House Market No. 3,
175 NLRB 596 (1969), enfd. 428 F.2d 133 (8th Cir. 1970); Made 4 Film, Inc., 337 NLRB 1152
(2002). See also Butera Finer Foods, 343 NLRB No. 30, slip op. at 1 (2004), where the Board
found that, after contract expiration, the employer was only required to pay into the pension fund
until it obtained actual evidence that a majority of its employees no longer supported the union.
The facts relating to this proposed amendment are not in dispute and are set forth in
documents that are already exhibits in this case. The terms and conditions of employment as
they existed immediately before September 11, 2009, are contained in the collective bargaining
agreement that expired on June 30, 2009. The unilaterally made changes are set forth in a
company policy document that was distributed to and signed by employees on or about
September 1, 2009. (General Counsel Exhibit 19).
The Respondent’s defense to this allegation has also been set forth during the trial and
basically consists of its assertion that a majority of the bargaining unit employees had signed a
petition to get rid of Local 100. If the Respondent prevails on its assertion that it had the right to
withdraw recognition from the Union because it has demonstrated, by probative evidence, that a
majority of employees had objectively manifested their intention not to be represented by the
JD(NY)–06–10
Union, then the Respondent would thereafter be free to make any and all changes in the terms
and conditions of employment without having to bargain with the Union.
As this proposed amendment relates to the most recent Complaint that was issued on
the day before this trial opened, (October 13, 2009), and as the General Counsel’s theory of
violation and the Respondent’s theory of defense are based on documentary evidence already
in the record, it is my opinion that the matter has been fully litigated. Accordingly, it is my
opinion that this proposed amendment to the Complaint would be fair and just and it hereby is
granted.
On another matter, I hereby receive into evidence, by way of official notice, General
Counsel Exhibits 109 to 113. These are documents that were created and filed by the Union
and the Employer in a civil case being conducted in the United States District Court, for the
Southern District of New York. The case number is 09 Civ. 701 and I would like to be updated
on this related case.
Finally, the hearing in this matter is presently scheduled to resume on November 30,
2009. I need to know from all parties whether or not they intend to call any additional witnesses
or offer any further evidence. Please advise me of your intentions by November 23, 2009. On
the other hand, if none of the parties intend to offer any new evidence, please advise me so that
I can close the hearing and set time for filing Briefs.
Dated: March 2, 2010.
__/s/ Raymond P. Green__
Raymond P. Green
Administrative Law Judge
JD(NY)–06–10
APPENDIX B
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 the National Labor Relations Act and has
ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected concerted activities.
WE WILL NOT suspend or discipline employees because they seek union representation in relation to
interviews that they reasonably believe could lead to disciplinary action.
WE WILL NOT refuse to furnish to Transport Workers Union of Greater New York, Local 100, AFL-CIO,
information relating to the investigation or processing of grievances.
WE WILL NOT refuse to meet with union representatives regarding pending grievances.
WE WILL NOT refuse to allow employees to bid for summer camp routes.
WE WILL NOT exclude certain regular school bus routes from the seniority/bidding process.
WE WILL NOT physically assault employees who are selected to be union representatives.
WE WILL NOT coercively interrogate employees concerning their union adherence or activities or about
the Board’s investigation of unfair labor practices.
WE WILL NOT fail to provide information relevant to bargaining for a new contract.
WE WILL NOT modify, alter or change the terms of a collective bargaining during mid-term, without the
consent of the Union.
WE WILL NOT refuse to bargain in good faith with representatives chosen by the Union
WE WILL NOT withdraw recognition from the Union in the absence of a demonstrated showing that the
Union has lost its majority status.
WE WILL NOT unilaterally and without bargaining with the Union, make changes in the terms and
conditions of employment after the expiration of the collective bargaining agreement on June 30, 2009.
WE WILL NOT in any other manner, interfering with, restraining or coercing employees in the rights
guaranteed to them by Section 7 of the Act.
JD(NY)–06–10
WE WILL within 14 days of this Order, remove from our files any reference to the unlawful suspension of
Cesar Uchofen in March 2008 and within three days thereafter, notify him in writing, that this has been
done and that the suspension will not be used against him in any way.
WE WILL except as explicitly excluded in this Decision, furnish to the Union, upon its request, the
information sought in the Union’s letters dated October 21 and December 8, 2008 and May 21 and June
18, 2009.
WE WILL upon request, recognize and bargain collectively with the Union as the exclusive representative
of its employees with respect to wages, hours, and other terms and conditions of employment, and if an
agreement is reached, embody such agreement in a signed document. The appropriate bargaining unit
consists of
All regular full and regular part-time school bus and van drivers, monitors, mechanics,
cleaners and fuelers employed by the Respondent but excluding office clericals and
guards and professional, confidential and supervisory employees as defined by the Act.
WE WILL rescind all changes made to the terms and conditions of employment made before and after
June 30, 2009 including any changes or modifications made to the seniority/bidding provisions of the
labor contract insofar as summer camp routes and regular school bus routes.
WE WILL make employees whole, with interest, for the loss of any earnings or benefits resulting from the
failure to comply with the terms of the seniority/bidding provisions described above or as a result of any
changes in the terms and conditions of employment made after June 30, 2009.
Ardsley Bus Corporation Inc.
a/k/a Gene’s Bus Company
(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.