MV Public Transportation

National Labor Relations Board - Board Decisions

Mar 22, 2011

356 N.L.R.B. 867 (N.L.R.B. 2011)

MV PUBLIC TRANSPORTATION 867
MV Public Transportation, Inc. and John D. Russell
and Local 1181-1061, Amalgamated Transit Un-
ion, AFL–CIO and Eric Baumwoll
Local 707, International Brotherhood of Teamsters
and John D. Russell. Cases 29–CA–29530, 29–
CA–29544, 29–CA–29619, 29–CA–29760, and
29–CB–13981
March 22, 2011
DECISION AND ORDER
BY MEMBERS BECKER, PEARCE, AND HAYES
On June 7, 2010, Administrative Law Judge Michael
A. Rosas issued the attached decision. Respondents MV
Public Transportation and Local 707, International
Brotherhood of Teamsters (Local 707), each filed excep-
tions1 and a supporting brief, the General Counsel and
Local 1181–1061, Amalgamated Transit Union, AFL–
CIO (Local 1181), each filed answering briefs, and Re-
spondent MV Public Transportation filed a reply brief.
Local 1181 filed cross-exceptions and a supporting brief,
Respondent MV Public Transportation filed an answer-
ing brief, and Local 1181 filed a reply brief. Finally, the
General Counsel filed limited exceptions.
The National Labor Relations Board has delegated its
authority in this matter to a three-member panel.
The Board has considered the decision and record in
light of the exceptions and briefs and has decided to af-
firm the judge’s rulings, findings,2 and conclusions as
1 Respondent MV Public Transportation does not except to the
judge’s finding that it violated Sec. 8(a)(2) and (1) of the Act by direct-
ing and urging its employees and applicants for employment, as a con-
dition of employment, to sign cards authorizing Local 707 to represent
them or have dues for Local 707 deducted from their salary. It also
does not except to the judge’s finding that it violated Sec. 8(a)(1) of the
Act by: (1) photographing employees as they engaged in lawful union
activity; (2) directing an employee to retrieve her signed authorization
card from Local 726, International Union of Journeyman and Allied
Trades (Local 726), confiscating it, and ripping it up; and (3) threaten-
ing an employee with discharge because he supported Local 1181 and
prohibiting him from speaking about Local 1181.
2 The Respondents have excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
The Respondents assert that the judge’s rulings, findings, and con-
clusions demonstrate bias and prejudice. On careful examination of the
entire record, we are satisfied that the Respondents’ contentions are
without merit.
In affirming the judge’s rejection of the Respondents’ 10(b) defense,
we agree with his finding that the 10(b) period began on or after Octo-
ber 5, 2008, when employees first learned of Local 707’s representative
status. Because the charge was filed on March 31, 2009, less than 6
months after October 5, 2008, the Respondents’ 10(b) defense fails.
modified, to modify his remedy,3 and to adopt the rec-
ommended Order, as modified and set forth in full be-
low.4
AMENDED CONCLUSIONS OF LAW
Substitute the following as new Conclusions of Law 5
and 75
Consequently, we find it unnecessary to pass on the judge’s alternative
basis for rejecting the 10(b) defense.
We correct the judge’s inadvertent error in stating that Respondent
MV Public Transportation’s “ramp-up” chart listed 11 service vehicles
in operation on October 1, 2008. The chart actually lists 8 service
vehicles in operation on that date.
In finding that Respondent MV Public Transportation prematurely
recognized Respondent Local 707, the judge applied the well-
established two-prong test articulated in Hilton Inn Albany, 270 NLRB
1364 (1984), which requires that at the time of recognition the employ-
er must: (1) employ a substantial and representative complement of its
projected work force; and (2) be engaged in normal business opera-
tions. We agree with the judge’s findings that the Respondent did not
satisfy either prong of the test.
Member Becker would no longer apply the “normal business opera-
tions” prong of this test. As explained by then-Member Liebman in her
dissent in Elmhurst Care Center, 345 NLRB 1176, 1179–1180 (2005),
the Board no longer applies that prong in determining whether a con-
tract will bar an election. See General Extrusion, 121 NLRB 1165,
1167 (1958). So long as a representative complement of employees has
been hired, absent a bar resting on their prior choice, employees should
be free to decide if they wish to be represented and when they wish to
make that decision. If those employees wish to wait until their employ-
er commences normal business operations, they are free to do so. But
that choice should be left to employees and not taken from them by the
Board. Continued application of the “normal business operations”
prong deprives employees of this element of a free choice and is incon-
sistent not only with General Extrusion, but with the development of
Board law in other areas as well. See Management Training Corp., 317
NLRB 1355 (1995); Midland National Life Insurance, 263 NLRB 127
(1982). Member Becker would therefore abandon that prong of the
test.
Because the Respondent-Employer failed to satisfy the first, “repre-
sentative complement” prong of the test, Member Pearce does not need
to address the continued viability of the second prong in affirming the
judge’s conclusion that the recognition of Respondent Local 707 was
premature.
Member Hayes adheres to the well-established Hilton Inn Albany
test, as reaffirmed in Elmhurst Care Center, and would therefore affirm
the judge’s finding of unlawful premature recognition under either
prong of that test.
3 In accordance with our decision in Kentucky River Medical Center,
356 NLRB 6 (2010), we modify the judge’s remedy by requiring that
backpay and other monetary awards shall be paid with interest com-
pounded on a daily basis. We have also modified the remedy to reflect
the Board’s usual remedial provisions.
4 We shall modify the judge’s recommended Order to provide for the
posting of the notice in accord with J. Picini Flooring, 356 NLRB 11
(2010). For the reasons stated in his dissenting opinion in J. Picini
Flooring, Member Hayes would not require electronic distribution of
the notice. We have also modified the judge’s recommended Order to
more fully reflect the violations found and to comport with the Board’s
usual remedial provisions. We shall also substitute a new “Notice to
Employees” as well as a new “Notice to Members,” both of which will
reflect the Board’s modifications to the Order.
356 NLRB No. 116

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 868
“5. By executing a collective-bargaining agreement
with Local 707 on December 12, 2008, which agreement
contained a union-security clause, notwithstanding the
fact that Local 707 did not represent an uncoerced major-
ity of the Company’s employees, the Company violated
Section 8(a)(1), (2), and (3) of the Act.”
“7. By photographing employees as they engaged in
lawful union activity; directing an employee to retrieve
her signed authorization card from Local 726, confiscat-
ing it, and ripping it up; and threatening an employee
with discharge because he supported Local 1181 and
prohibiting him from speaking about Local 1181, the
Company violated Section 8(a)(1) of the Act.”
AMENDED REMEDY
Having found that Respondent MV Public Transporta-
tion has engaged in unfair labor practices within the
meaning of Section 8(a)(1), (2), and (3) of the Act and
that Respondent Local 707 has engaged in unfair labor
practices within the meaning of Section 8(b)(1)(A) and
(2), we shall order that each Respondent cease and desist
and take certain affirmative action to effectuate the poli-
cies of the Act.
Respondent MV Public Transportation will be ordered
to withdraw recognition from Local 707 and the latter
will be ordered to cease accepting recognition from the
former unless certified by the Board. Both Respondents
will be ordered to cease giving effect to their December
12, 2008 collective-bargaining agreement, including all
renewals, extensions, and modifications, and to cancel it
entirely. The Respondents will also be ordered jointly
and severally to reimburse all present and former em-
ployees for all initiation fees, dues, and other moneys
paid by them or withheld from them pursuant to the De-
cember 12, 2008 collective-bargaining agreement, with
interest at the rate prescribed in New Horizons for the
Retarded, 283 NLRB 1173 (1987), compounded daily as
prescribed in Kentucky River Medical Center, 356 NLRB
6 (2010). However, reimbursement shall not extend to
those employees who voluntarily joined and became
members of Local 707 prior to December 12, 2008. See
Elmhurst Care Center, 345 NLRB 1176, 1185 (2005).
5 We have amended Conclusion of Law 5 to correctly reflect, con-
sistent with the judge’s findings, that Respondent MV Public Transpor-
tation executed its collective-bargaining agreement with Local 707 on
December 12, 2008, not September 12, 2008. We have amended Con-
clusion of Law 7 to correctly reflect, consistent with the judge’s find-
ings, that Respondent MV Public Transportation violated Sec. 8(a)(1)
of the Act by directing an employee to retrieve her signed authorization
card from Local 726, not Local 1181.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that:
A. Respondent MV Public Transportation, Inc., Staten
Island, New York, its officers, agents, successors, and
assigns shall
1. Cease and desist from
(a) Recognizing Local 707 as the exclusive representa-
tive of its employees for the purpose of collective bar-
gaining unless and until Local 707 is certified by the
Board as the collective-bargaining representative of such
employees pursuant to Section 9(c) of the Act.
(b) Maintaining or giving any effect to its collective-
bargaining agreement with Local 707 entered into on
December 12, 2008, or any renewal, extension, or modi-
fication thereof unless and until Local 707 is certified by
the Board as the collective-bargaining representative of
such employees; provided however that nothing in this
Order shall require any changes in wages or other terms
and conditions of employment that may have been estab-
lished pursuant to the collective-bargaining agreement.
(c) Directing and urging its employees or applicants
for employment that, as a condition of employment, they
have to sign cards authorizing Local 707 to represent
them or have dues for Local 707 deducted from their
salary.
(d) Photographing employees as they engage in lawful
union activity, prohibiting employees from signing au-
thorization cards on behalf of a union, prohibiting em-
ployees from speaking about a union, and threatening
employees with discharge for speaking in support of a
union.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Withdraw and withhold all recognition from Local
707 as the collective-bargaining representative of its em-
ployees unless and until Local 707 has been duly certi-
fied by the Board as the exclusive representative of such
employees.
(b) Jointly and severally with Local 707 reimburse
with interest all present and former employees for all
initiation fees, dues, and other moneys paid by them or
withheld from them pursuant to the terms of the dues-
checkoff and union-security clauses in the December 12,
2008 collective-bargaining agreement in the manner set
forth in the remedy section of this Decision and Order.
(c) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for

MV PUBLIC TRANSPORTATION 869
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of reimbursement due
under the terms of this Order.
(d) Within 14 days after service by the Region, post at
its Staten Island, New York facility copies of the at-
tached notice marked “Appendix A.”6 Copies of the
notice, on forms provided by the Regional Director for
Region 29, after being signed by Respondent MV Public
Transportation’s authorized representative, shall be post-
ed by Respondent MV Public Transportation and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site,
and/or other electronic means, if Respondent MV Public
Transportation customarily communicates with its em-
ployees by such means. Reasonable steps shall be taken
to ensure that the notices are not altered, defaced, or cov-
ered by any other material. In the event that, during the
pendency of these proceedings, Respondent MV Public
Transportation has gone out of business or closed the
facility involved in these proceedings, Respondent MV
Public Transportation shall duplicate and mail, at its own
expense, a copy of the notice to all current employees
and former employees employed by Respondent MV
Public Transportation at any time since September 12,
2008.
(e) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that Respondent MV Public Transpor-
tation has taken to comply.
B. Respondent Local 707, International Brotherhood
of Teamsters, its officers, agents, and representatives,
shall
1. Cease and desist from
(a) Accepting recognition from and executing a collec-
tive-bargaining agreement with MV Public Transporta-
tion at a time when it did not employ a representative
number of its ultimate complement of unit employees
and before it was engaged in normal business operations.
6 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
(b) Giving effect to its December 12, 2008 collective-
bargaining agreement with MV Public Transportation or
to any extension, renewal, or modification thereof unless
and until Respondent Local 707 is certified by the Board
as the collective-bargaining representative of such em-
ployees.
(c) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed
them by Section 7 of the Act except to the extent that
such rights may be affected by an agreement requiring
membership in a labor organization as a condition of
employment as authorized in Section 8(a)(3) of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Jointly and severally with MV Public Transporta-
tion reimburse with interest all present and former em-
ployees for all initiation fees, dues, and other moneys
paid by them or withheld from them pursuant to the
terms of the dues-checkoff and union-security clauses in
the December 12, 2008 collective-bargaining agreement
in the manner set forth in the remedy section of this De-
cision and Order.
(b) Post at its business office and other places where
notices to its members are customarily posted copies of
the attached notice marked “Appendix B.”7 Copies of
the notice, on forms provided by the Regional Director
for Region 29, after being signed by Respondent Local
707’s authorized representative, shall be posted by Re-
spondent Local 707 and maintained for 60 consecutive
days in conspicuous places including all places where
notices to employees are customarily posted. In addition
to physical posting of paper notices, notices shall be dis-
tributed electronically, such as by email, posting on an
intranet or an internet site, and/or other electronic means,
if Respondent Local 707 customarily communicates with
its members by such means. Reasonable steps shall be
taken to ensure that the notices are not altered, defaced,
or covered by any other material.
(c) Furnish the Regional Director with signed copies of
the notice for posting by MV Public Transportation
where notices to all employees are customarily posted.
Copies of the notice, to be furnished by the Regional
Director, shall be signed by Respondent Local 707 and
forthwith returned to the Regional Director.
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all dues remittance re-
ports submitted by MV, and all other records, including
an electronic copy of such records if stored in electronic
7 See fn. 6, supra.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 870
form, necessary to analyze the amount of reimbursement
due under the terms of this Order.
(e) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that Respondent Local 707 has taken
to comply.

APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT recognize or contract with Local 707, In-
ternational Brotherhood of Teamsters as the bargaining
representative of our employees, until it has been certi-
fied as such representative by the National Labor Rela-
tions Board.
WE WILL NOT maintain or give effect to our December
12, 2008 contract with Local 707 or to any renewal, ex-
tension, or modification thereof, unless and until Local
707 is certified by the Board as the collective-bargaining
representative of our employees; but we are not required
to make any changes in wages or other terms and condi-
tions of employment that may have been established pur-
suant to the contract.
WE WILL NOT direct or urge our employees or appli-
cants for employment, as a condition of employment, to
sign cards authorizing Local 707 to represent them or
have dues for Local 707 deducted from their salary.
WE WILL NOT photograph employees as they engage in
lawful union activity, prohibit employees from signing
authorization cards on behalf of a union, threaten em-
ployees with discharge for supporting a union, or prohib-
it employees from speaking about a union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL withdraw and withhold all recognition from
Local 707 as the collective-bargaining representative of
our employees.
WE WILL, jointly and severally with Local 707, reim-
burse, with interest, all our present and former employees
for all initiation fees and dues paid by them or withheld
from them pursuant to the dues-checkoff and union-
security clauses in the December 12, 2008 contract.
However, reimbursement will not extend to those em-
ployees who voluntarily joined Local 707 prior to De-
cember 12, 2008.

MV PUBLIC TRANSPORTATION, INC.
APPENDIX B
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain on your behalf
with your employer
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT act as the exclusive bargaining repre-
sentative of any employees of MV Public Transportation,
Inc. unless and until we have demonstrated our majority
status and have been certified by the Board.
WE WILL NOT maintain or give effect to the December
12, 2008 contract between MV Public Transportation,
Inc. and us or to any renewal, extension, or modification
thereof.
WE WILL NOT in any like or related manner restrain or
coerce the employees of MV Public Transportation, Inc.
in the exercise of the rights listed above, except to the
extent that such rights may be affected by an agreement
authorized in Section 8(a)(3) of the Act.
WE WILL, jointly and severally with MV Public Trans-
portation, Inc., reimburse, with interest, all present and
former employees of MV Public Transportation, Inc. for
all initiation fees and dues paid by them or withheld from
them pursuant to dues-checkoff and union-security
clauses in the December 12, 2008 contract. However,
MV PUBLIC TRANSPORTATION 871
reimbursement will not extend to those employees who
voluntarily joined Local 707 prior to December 12, 2008.

LOCAL 707, INTERNATIONAL BROTHERHOOD OF
TEAMSTERS

Nancy Lipin, Esq., for the General Counsel.
H. Tor Christensen, Esq. (Littler Mendelson P.C.), of Washing-
ton, D.C., for the Respondent MV Public Transportation,
Inc.
George Kirschenbaum, Esq. (Cary Kane, LLP), of New York,
New York, for the Respondent Local 707, International
Brotherhood of Teamsters.
Richard Brook, Esq. (Meyer, Suozzi, English & Klein, P.C.), of
New York, New York, for the Charging Party Local 1181-
1061 Amalgamated Transit Union, AFL–CIO.
DECISION
STATEMENT OF THE CASE
MICHAEL A. ROSAS, Administrative Law Judge. This case
was tried in Brooklyn, New York, on December 8–11, 16–17,
2009, and January 19, 2010. The charge in Cases 29–CA–
29530 and 29–CB–13981 were filed March 31, 2009, the
charge in Case 29–CA–29760 was filed August 7, 2009, the
charge and first amended charge in Case 29–CA–29544 were
filed on April 9 and June 9, 2009, respectively, and the charge
in Case 29–CA–29619 was filed on May 22, 2009. The com-
plaint issued September 30, 2009.1
The complaint alleges that MV Public Transportation, Inc.
(the Company) violated Section 8(a)(1), (2), and (3) as follows:
(1) on or about September 12, 2008, by granting recognition to
Respondent Local 707, International Brotherhood of Teamsters
(Local 707) as the exclusive collective-bargaining representa-
tive of all drivers employed by the Company at its Staten Is-
land, New York facilities; (2) on or about October 20, 2008, by
conditioning employment on employees agreeing to sign au-
thorization cards on behalf of Local 707; (3) on or about De-
cember 12, 2008, by entering into, and since then maintaining
and enforcing, a collective-bargaining agreement, which in-
cludes union-security and checkoff provisions, with Local 707
on behalf of the Company’s drivers, mechanics, and utility
workers. The complaint also alleges complicity on the part of
Local 707, who violated Section 8(b)(1)(A) and 8(b)(2) by
accepting such recognition at a time when the Company did not
employ a representative segment of the ultimate employee
complement and was not yet engaged in its normal operations
of providing paratransit services, and then entering into, main-
taining, and enforcing the aforementioned collective-bargaining
agreement.
The complaint further alleges that the Company violated
Section 8(a)(1) as follows: (1) in or around February by threat-
ening employees with job loss unless they signed a dues-
checkoff on behalf of Local 707; (2) by engaging in surveil-
lance of employees’ union activities; (3) directing employees
1 Unless otherwise indicated, all dates refer to the period between
August 2008 and July 2009.
who signed authorization cards for another union to return
those cards; (4) threatening employees with reprisals because of
their activities on behalf of another union; (5) spat at employees
who were engaged in activities supporting another union; and,
on or about April 30, by directing employees not to speak about
Local 1181 at its facility and threatening them with discharge if
they disobeyed that directive.
The Company and Local 707 deny the material allegations in
the complaint. In addition, the Company contends that the
claim is time-barred pursuant to Section 10(b) because the
recognition agreement was signed on September 12 and the
charge was not filed until March 31.
In a bizarre twist of events, the Company’s general manager
responded to the General Counsel’s subpoena duces tecum (B-
562546) for the Company’s payroll records by producing a
summary of its database information and then disavowing its
accuracy.2 The General Counsel responded with another sub-
poena duces tecum requesting additional documents to clarify
the extent of the Company’s work force during the term of the
Contract. I partially granted the Company’s petition to revoke,
but required it to produce the union dues remittance form and
Form I-9 (Department of Homeland Security, Employment
Eligibility Verification) for every employee reflected in the
payroll information produced.3 Forms I-9 would have been
reliable records, within a 3-day period, as to employee hire
dates. The applicable period was from the commencement of
operations through July 31.4 The Company produced the re-
mittance forms, but refused to produce the Forms I-9, citing
unspecified problems or complications if it did—even after I
assured the Company that such documents would be placed
under seal. The General Counsel then requested an adjourn-
ment in order to seek enforcement of the subpoena in United
States district court. I denied that request in light of the availa-
bility of alternative procedural remedies, including sanctions
pursuant to Banyon Mills Inc., 146 NLRB 611, 613 (1964). See
also McAllister Bros., Inc., 341 NLRB 394, 396 (2004).5 The
General Counsel moved for such sanctions and I grant her ap-
plication in the following respects: the payroll information
produced is deemed accurate as to hiring dates, hours worked,
job classifications, and all other information contained therein,
except where reliable evidence indicates otherwise; and, to the
extent that any such information is uncertain, an inference will
be drawn in favor of the General Counsel.
On the entire record,6 including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, the Company and Local 1181, I make
the following
2 The credibility of Quinto Rapacioli, the Company’s general man-
ager and the person upon whom the subpoena was served, was neces-
sarily diminished as a result of his production of summary payroll
information and then disavowing it as inaccurate. (Tr. 349–350, 447,
475–477.)
3 ALJ Exhs. 1–4; GC Exhs. 30–32.
4 Tr. 488, 492.
5 Tr. 775.
6 The General Counsel’s unopposed motion to correct the transcript,
dated April 1, 2010, is granted and received in evidence as GC Exh. 37.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 872
FINDINGS OF FACT
I. JURISDICTION
The Company, a corporation, a domestic corporation with its
principal office and place of business in Staten Island, New
York, has been engaged in providing paratransit services within
New York, New York, where it annually derives gross annual
revenues in excess of $250,000, and purchases and receives at
its Staten Island facilities good and materials valued in excess
of $5000 directly from suppliers located outside the State of
New York. The Company admits and I find that it is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act and that Locals 707 and 1181 are
labor organizations within the meaning of Section 2(5) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Company’s Operations
Based in Fairfield, California, the Company is the largest
provider of paratransit services in the United States.7 Since
2001, the Company has provided paratransit services in Brook-
lyn, New York, for the New York City Transit Authority
(Transit Authority). That operation has grown to encompass
310 routes daily with 251 vehicles and 450 transit profession-
als.8 Since August 2008, the Company has also provided para-
transit services to passengers in Staten Island pursuant to a
Transit Authority contract.9
The Company’s general manager is Quinto Rapacioli. Dur-
ing the relevant period of time, John Duncan served as opera-
tions manager and Ronald McElhose10 was employed as a driv-
ing instructor. All acted as the Company’s statutory supervisors
and/or agents.
In late August, the Company began training drivers for its
Staten Island operations at 125 Lake Avenue (Lake Avenue
facility). Shortly thereafter, it opened offices at 900 South
Avenue (South Avenue facility). From September through the
spring of 2009, the Company utilized a trailer located at 40
LaSalle Street (LaSalle Street facility) to house a drivers’ room,
dispatch room, and maintenance area. The Company’s vehicles
were parked in a yard outside this trailer. After drivers com-
pleted training, they reported to work each day at the 40
LaSalle Street facility. In the spring of 2009, the Company
moved its entire operation to a larger facility at 1957 Richmond
Terrace.
B. The Company’s Bid for the Staten Island
Access-A-Ride Contract
In 2007, the Transit Authority sought bids from paratransit
providers to provide “Access-A-Ride Paratransit Transportation
Service” in Staten Island, New York. The Company and other
companies bid for the work, including the incumbent service
provider, RJR Paratransit. The Company’s bid stated, in perti-
nent part:
7 GC Exh. 23.
8 GC Exh. 23.
9 GC Exh. 20.
10 McElhose was referred to in the testimony by his nickname,
“Mack.”

[The Company] is proposing to operate 300 vehicles for the
Access-A-Ride Service. Our proposed facilities are sufficient
to accommodate this size for a fleet, however, we do not ex-
pect to start at this level of service.

[The Company] is proposing to start with an approximate 150
vehicle fleet for this project. Our startup plan shows that we
can be fully operation [sic] with this starting fleet in approxi-
mately three months and we could begin partial operations
even earlier.
Once we have stabilized the startup operations, we would then
look to start expanding the operation. We believe that a 50
vehicle per year expansion will allow us to add the additional
service on the street without impacting existing operations. It
is critical that the passengers are only positively affected as
the expansions are taking place. This expansion plan offers
ample time to proper hiring and training, thus ensuring a safe,
quality operation.

This expansion plan closely mirrors the [Transit Authority’s]
expected growth in the Access-A-Ride service over the next
few years. By following this plan, [the Company] would be at
the full 300 vehicle operation limit in a three to four year peri-
od.11

The Company’s proposal included a price summary for the
initial 150 vehicles and the expansion of 150 more for a total
estimated first year amount of $21,525,085.12 The vehicles
were to be serviced and stored at the Company’s Lake Avenue
facility and operated by 237 drivers. The Company also repre-
sented that the Lake Avenue facility was capable of supporting
such a fleet.13
C. The Company Is Awarded Contract and Prepares
to Operate
By letter, dated August 29, the Transit Authority congratu-
lated the Company on its award for a contract to provide Ac-
cess-A-Ride services in Staten Island and mentioned transition-
al issues affecting the employees of incumbent carriers:

As you may be aware, some incumbent carriers are not re-
ceiving an award at this time. Employees of these carriers
may approach you requesting a position in your organization.
We encourage your taking advantage of available and experi-
enced personnel who are dedicated to Access-A-Ride service.
We request that you keep in mind that while you are mobiliz-
ing and ramping up, New York City Transit will be relying on
the on-street service provided by those carriers ramping
down. To that end, any transfer of employees must be ad-
dressed and handled in an organized and manageable fashion.
As such, NYC Transit will work closely with you and help
coordinate such transfers so as not to adversely affect the
overall program. You, as a carrier, are required to keep NYC
Transit informed of the staff you will be hiring. Operator
hires must be reviewed by the Standards and Compliance
(S&C) Transportation Section. Maintenance personnel hires
11 GC Exh. 21(a) at 48.
12 GC Exh. 36 at pp. 2 and 8.
13 GC Exh. 21(a) at 48, 57.

MV PUBLIC TRANSPORTATION 873
must be reviewed by the S&C Maintenance Section. All
managerial and support staff hires should be reviewed by your
assigned NYC Transit Contract Manager.14

On September 5, the Transit Authority formally accepted the
Company’s bid and awarded it Contract No. 07H9751 for Ac-
cess-A-Ride Paratransit Transportation Service (the Contract).
The Transit Authority’s acceptance was explicitly based on the
Company’s best and final offer (BAFO) for the “total estimat-
ed” amount of $422,066,234.00. It was final and not condi-
tioned upon any other developments.15 The Contract terms,
consistent with the Company’s proposal, included a 10-year
term for the operation of 150 vehicles, with an expansion to
300 vehicles. The vehicles were to be leased to the Company
by the Transit Authority.16 Specifically, the Contract’s “Vehi-
cle Start Up/Expansion Schedule” required the Company to
field 15 vehicles by October 20, and an additional 20 vehicles
for each of the next 3 months. Therefore, by January 20, 2009,
the Company would have been required to have 75 vehicles in
operation. Thereafter, the Contract Schedule required the oper-
ation of an additional 10 vehicles per month until 150 vehicles
were reached. At such a rate, 150 vehicles would be in opera-
tion by September 2009. Once it attained an operational level
of 15 vehicles, the Company was required to field an additional
10 vehicles per month until 300 were in operation.17
By letter, dated September 22, Michael Cosgrove, the Transit
Authority’s representative, advised Rapacioli that the Transit
Authority expected the Company to “maintain the ramp up
commitment” in its proposal.18 Rapacioli responded immedi-
ately by submitting a “ramp-up” chart containing the schedule
for vehicles in service and total drivers: October 1—11 vehi-
cles, 10 drivers; October 13—11 vehicles, 16 drivers; October
20—15 vehicles, 29 drivers; November 17—35 vehicles, 70
drivers; December 22—55 vehicles, 109 drivers; January 19,
2009—75 vehicles, 148 drivers; February 16, 2009—85 vehi-
cles, 168 drivers; March 16, 2009—95 vehicles, 188 drivers;
April 13, 2009—105, 208 drivers; May 11, 2009—115 vehi-
cles, 228 drivers; June 15, 2009—125 vehicles, 248 drivers;
July 13, 2009—135 vehicles, 267 drivers; and August 10,
2009—135 vehicles, 267 drivers.19
14 CP Exh. 2.
15 The Company attempted to inject uncertainty as to the award
based on letters to a local newspaper urging support for the prior ser-
vice provider. (R. Exh. 3, p. 2.) However, there was no credible evi-
dence even suggesting that the notice of award/notice to proceed issued
by the Transit Authority, the local governmental agency charged with
administering the Contract, was anything other than final. (GC Exhs.
20, 22.)
16 GC Exh. 20, Scope of Work, Attachment 1 at 10.
17 GC Exh. 20, Attachment 30.
18 GC Exh. 27.
19 Although Rapacioli did not clarify the specific categories listed on
the chart, it appears that the number of drivers needed to operate in-
cluded an additional amount of relief drivers. (Tr. 345.) With respect
to the number of vehicles projected, I relied on the information for
vehicles in service, rather than vehicles assigned, since the latter statis-
tic is a more reliable indicator of actual operations. (GC Exh. 28.)
D. Start-Up Hiring, Training, and the Recognition
Following award of the Contract, the Company immediately
hired driver trainees as required by the Contract. The first
group of 22 trainees commenced the 3–4 week long training
course on August 28. The initial part of the course consisted of
at least two weeks and two days of classroom instruction at the
Lake Avenue facility. Around the middle to latter part of Sep-
tember—but after September 12—the trainees reported to the
LaSalle Street facility for driving instruction.20 Upon success-
ful completion of the course and certification by the Transit
Authority, trainees were eligible to operate a Company vehi-
cle.21 However, there is a high turnover and not all trainees
completed the course. Of the 22 trainees in the first class, only
11 were certified as drivers.22 By September 26, 42 driver
trainees were on the payroll. By that time, however, four of the
employees hired prior to September 12 were no longer em-
ployed.23
Pursuant to a September 29 email directive from the Transit
Authority, the Company commenced operations by operating
eight routes with 11 vehicles on October 1.24 On October 6, the
Company publicly announced its successful start under the
Contract in a press release, which stated, in pertinent part:25

MV Public Transportation, Inc. —chosen by the New York
Metropolitan Transit Authority to manage and operate para-
transit services for Staten Island—has successfully begun op-
eration of the Access-A-Ride paratransit services in the bor-
ough.

In less than 30 days from contract signing, MV placed a
strong team in position, and transitioned into the service. Un-
der the terms of the 10-year contract, MV began providing
service on October 1 with 11 vehicles on eight routes.
20 Neither Rapacioli nor current employee Stephen Rebracca provid-
ed specific dates as to when the classroom portion ended and the driv-
ing portion began. However, Rapacioli explained that the driving por-
tion would have commenced no sooner than 2 weeks and 2 days after
the classroom instruction began. (Tr. 399.). Rebracca testified that he
did not report to the LaSalle Street facility for the driving portion of the
course until the third or fourth week in September. (Tr. 207, 212.)
Based on such testimony, it is clear that employees were not yet en-
gaged in the driving portion of the training course as of September 12.
21 The job code for drivers was denoted as “610” on the first set of
payroll records, but changed to job code “T156610” by the check date
of September 26. (GC Exh. 31; Tr. 352.)
22 I based this finding on the testimony of current employee Stephen
Rebracca and Rapacioli, as the dates of hire reflected in the Company’s
payroll records appeared to lag behind the documented hiring dates.
(Tr. 206–210, 399–401, 456–457; GC Exh. 31, Div. 156(8)–(9).) Not-
withstanding my aforementioned ruling to draw adverse inferences
against the Company regarding the payroll records, the General Coun-
sel and Charging Party did not request that I rely on the payroll record
of indicating a work force of 18 driver trainees as of September 12 and
assumed, for purposes of their legal arguments, that there were 22
driver trainees in the first class. (GC Br. 28, 4748; CP Br. 3.)
23 Christopher Dotts, Anthony Giambrone, Anthony Miceli, and Al-
exander Peter.
24 Rapacioli referred to different starting dates, October 1 and 5, but
the former appears more compatible with the evidence received. (GC
Exhs. 23, 25; Tr. 320, 452.)
25 GC Exh. 23.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 874

The company has operated paratransit services with the MTA
since 2001, and currently has a local office in Brooklyn. The
initial contract award includes a doubling of the vehicles used
to provide service—from 150 to 300.

The payroll records reveal an escalation in operations after
October 1 consistent with the Company’s proposal.26 By Oc-
tober 10, 79 drivers were on the payroll, including 55 of
which were operating routes by October 12. However, two
more employees hired prior to September 12 were no longer
employed and another was working as a dispatcher.27 By Oc-
tober 24, 97 drivers were on the payroll. However, one em-
ployee hired prior to September 12 was no longer em-
ployed.28 By November 7, 125 drivers were on the payroll.
However, another employee hired prior to September 12 was
no longer employed.29 By November 21, 119 drivers were on
the payroll. However, another employee hired prior to Sep-
tember 12 was no longer employed.30 By December 5, 133
drivers were on the payroll. By December 19, 144 drivers
and 12 mechanics were on the payroll, 139 of which were
working by December 12. By then, only 6 of the employees
hired prior to September 12 were still employed. By January
2, 2009, 164 drivers and 13 mechanics were on the payroll.
By January 16, 188 drivers and 15 mechanics were on the
payroll. At that point, the Company was operating at least
160 shifts.31

After January 2009, the total number of drivers and mechan-
ics hired each payroll period continued to grow significantly, as
follows: January 31: 238 (248 drivers, 18 mechanics); February
28: 279 (252 drivers, 26 mechanics); March 31: 261 (235 driv-
ers, 26 mechanics); April 30: 264 (237 drivers, 27 mechanics);
May 31: 269 (240 drivers, 29 mechanics); June 30: 278 (249
drivers, 29 mechanics); July 31: 298 (269 drivers, 29 mechan-
ics); August 31: 286 (257 drivers, 29 mechanics); September
30: 298 (266 drivers, 29 mechanics); October 31: 307 (279
drivers, 28 mechanics); and November 30: 309 (280 drivers, 29
mechanics).32
The number of vehicles assigned by the Transit Authority to
the Company between September 2008 and November 2009,
generally reflected the work force in place at the time and the
initial projections by the Company—roughly one vehicle for
every two drivers: September 2008: 12; October 2008: 22; No-
vember 2008: 40; December 2008: 77; January 2009: 89; Feb-
ruary 2009: 101; March 2009; 111; April 2009: 119; May 2009:
124; June 2009: 124; July 2009: 125; August 2009: 129; Sep-
tember 2009: 129; October 2009: 129; November 2009: 131;
and December 11, 2009: 124.33
26 GC Exh. 31.
27 Robert Meisels, Margaret Hicks, and Jamelia Alleyne.
28 Anthony King.
29 Elizabeth Kelley.
30 Arlene Crupi.
31 GC Exh. 4.
32 GC Exhs. 31–32.
33 Rapacioli testified that the Transit Authority did not adhere to the
schedule for vehicle service as set forth in Attachment 30 to the Con-
tract. (Tr. 403, 411412.) However, the Company’s records confirm
that the schedule was generally met. (GC Exhs. 24, 28.)
E. The Company’s Agreement With Local 707
On August 28, the Company and Local 707 executed a “Card
Check and Neutrality agreement for Staten Island, New York”
(card-check agreement). Essentially, that agreement required
the Company to recognize Local 707 upon a showing that a
majority of employees had signed authorization cards or a peti-
tion. The applicable employees consisted of “[a]ll full-time and
regular part-time drivers in Staten Island, NY, excluding ware-
house employees, mechanics and similar maintenance employ-
ees office clerical employees, managerial employees, guards,
and supervisors as defined by the National Labor Relations
Act.” An arbitrator from the Federal Mediation and Concilia-
tion Service was required to certify the showing of interest.
The Company further agreed to maintain a neutral position as
to whether employees were to be represented by Local 707. In
exchange, the latter agreed to refrain from negative campaign-
ing against the Company.34
That same day, as employees arrived for training at the Lake
Avenue facility, they were met by Local 707’s business repre-
sentative, Danny Pacheco, and several other union officials.
The Local 707 representatives solicited membership in Local
707, handed union authorization cards to the employees, sug-
gested they speak among themselves and asked them to return
the cards signed if they agreed.35
By letter, dated September 8, Local 707’s president, Kevin
McCaffrey, informed the Company that it believed that it had
“majority status” and requested verification pursuant to the
card-check agreement.36 On September 11, Local 707 present-
ed arbitrator Elliot Shriftman with 20 signed authorization
cards from among the Company’s 22 employees in the unit of
drivers employed during the payroll period ending September
13.37 In response, Shriftman certified that Local 707 “was
designated by a majority of the Company’s employees in the
unit as their exclusive bargaining representative for purposes of
collective bargaining” (the certification).38 The appropriate
bargaining unit (the Unit) was defined as follows:

All full-time and regular part-time drivers in Staten Island,
NY, but excluding warehouse employees, mechanics and
similar maintenance employees, office clerical employees,
managerial employees, guards and supervisors as defined by
the National Labor Relations Act.

34 Jt. Exh. 1.
35 Rapacioli and Rebracca provided consistent testimony regarding
these events. (Tr. 207–209, 417.) The payroll records, however, ap-
peared to lag behind the actual starting date for training since it is not
disputed that Rebracca began attending training classes on August 28,
although the September 12 payroll record indicates that he was hired on
September 5. In fact, that record shows only one employee, Christo-
pher Dotts, hired on August 29, while the rest were formally hired
between September 2 and 8. (GC Exh. 31, Div. 156(9).)
36 GC Exh. 19.
37 As noted at fn. 22, although the payroll records indicate that there
were 18 driver trainees on the payroll as of September 12, the General
Counsel and Charging Party assumed, for purposes of their legal argu-
ments, that the number of cards presented to the arbitrator of September
12 equaled the number of driver trainees on the payroll on that date.
38 GC Exh. 8(b).

MV PUBLIC TRANSPORTATION 875
Following the certification, on September 12, the Company
and Local 707 entered into a recognition agreement recognizing
the latter as the exclusive collective-bargaining representative
of the Company’s full-time and regular part-time drivers in
Staten Island, but excluding warehouse employees, mechanics
and similar maintenance employees, office clerical employees,
managerial employees, guards and supervisors as defined in the
[Act].” The Company and Local 707 also agreed to “meet
promptly and engage in good-faith negotiations concerning the
terms of a Collective-Bargaining Agreement governing the
wages, hours and other terms of employment of the employees
in the appropriate bargaining unit.”39 At this point in time,
however, all of the Company’s employees were trainees and
none had attained the employment status of driver.
The process of obtaining signed union authorization cards
brought the issue of labor representation to the attention of
most, if not all, of the employees in the first training class.
However, they were not kept abreast of subsequent develop-
ments by either the Company or Local 707, since neither the
certification nor recognition agreement were posted in the driv-
ers’ room at the LaSalle Street facility in September.40 Even if
those documents had been posted on the bulletin board or walls
in the small drivers’ room there, they would not have been
39 Jt. Exh. 2.
40 This finding is based on my determination that Company employ-
ees Stephen Rebracca, Eric Baumwoll, and John Russell (Tr. 88–90;
143–144; 206, 215–216) were more credible than Rapacioli, Pacheco,
Ranieri, and Osman on this point (Russell did not start work until Oc-
tober 20.) In untangling the conflicting and vague testimony, it was
evident that the drivers’ room was cluttered with papers posted all over.
Rapacioli was unsure of the date, but speculated that he posted the
certification and a handwritten note on either September 18 or 20, but
contradicted that assertion with an estimate that he posted them in “late,
late September.” (Tr. 420–421.) Pacheco testified that he posted the
certification after the September 12 recognition agreement was entered
into, but failed to provide the names of persons with whom he spoke.
That assertion also appears to conflict with Local 707’s August 4, 2009
position statement that it posted a September 18 docket letter from
Region 29 in the drivers’ room, but omitted reference to the posting of
any other documents. (Tr. 388, 548–549, 573; GC Exhs. 8(b), 13, 34.)
Ranieri’s testimony was vague and inconsistent, and he was impeached
after initially denying having provided a pretrial written statement. (Tr.
518–519, 524–528.) Moreover, the testimony of Osman, an extremely
evasive witness who initially invoked her Fifth Amendment privilege
against self-incrimination before agreeing to be cross-examined by the
General Counsel, was completely devoid of credibility. Thus, I do not
credit her assertions as to when she first spoke with Pacheco about
Local 707 representation or saw notices posted in the drivers’ room.
Her direct examination appeared overly scripted, especially with re-
spect to specific dates, and it was evident that her relevant testimony—
that she saw the certification, recognition agreement, and Dana notice
all posted in the drivers’ room on September 18, 2008—was based
solely on Local 707’s counsel having shown her the Regional Direc-
tor’s letter with that date a year later. (Local 707, Exh. 1.) Only after
the parties agreed to permit Osman to consult with Local 707 counsel
did she agree to be cross-examined. She looked continuously at
Pacheco after answering questions, sometimes grinning. (Tr. 584–587,
593–598, 608–610, 614–619, 625, 631–632.) Lastly, Russell, whose
testimony I found consistent and credible, testified that Osman admitted
to him that she was offered a raise and more hours for testifying on
behalf of the Company. (Tr. 726, 729–731.)
reasonably visible in September to employees, such as Stephen
Rebracca, who was hired on September 5.41 The bulletin
board, as well as the other walls in the driver’s room, “was out
of control.” Employees used the room to post “their own
stuff,” dispatchers posted “driver’s notices and trips” and “there
was paper all over the place.”42
By letter, dated September 15, Local 707’s counsel notified
the Board’s Region 29 that his client was “voluntarily recog-
nized” by the Company, enclosed a copy of the recognition
agreement executed by the Company and Local 707, and re-
quested that Region 29 “provide the necessary Notices so that
the Employer may post the Notice of Voluntary Recognition as
quickly as possible.”43 Pacheco received a response from Re-
gion 29 on September 20, but did not post that communication
in the drivers’ room during September.44
On October 2, the Company was notified by Region 29 that
it needed to post a Dana notice.45 On October 5, Rapacioli
posted them in the driver’s room at the LaSalle facility.46 In
addition, the Company’s employees began learning about Local
707’s representative status during training classes beginning on
October 6, as training instructor McElhose began to introduce
Pacheco to new trainees as their union representative. Employ-
ees were then directed to sign authorization cards on behalf of
Local 707 and return them immediately. In response to ques-
tions as to why the cards needed to be filled out, supervisors
explained that they were a condition of employment.47 Rapaci-
oli made such statements to a new class of trainees on October
20. During other classes, including the one on November 10,
McElhose did the introduction, informed the trainees that they
41 Rebracca, a current employee subpoenaed by the General Counsel
and the trial’s most credible witness, provided spontaneous and con-
sistent testimony. (Tr. 214–215.)
42 The collective testimony of Rapacioli, Pacheco, and Ranieri con-
firmed that the drivers’ room walls, including the bulletin board, were
covered with many postings. Rapacioli described the situation as “out
of control.” As such, it was evident that any papers posted in that room
were soon covered or lost amidst a virtual paper jungle and, thus, not
reasonably visible to drivers entering that room. (Tr. 421, 462–463,
518–519, 547, 571, 573; GC Exh. 8(b).)
43 GC Exh. 35.
44 I base this finding on the same reasons stated in fn. 40.
45 Dana notices are workplace notices provided by the Board notify-
ing employees of their right to file a decertification petition within a 45-
day window period, pursuant to the Board’s decision in Dana Corp.,
351 NLRB 434 (2007).
46 As to this particular posting, I found Rapacioli’s certainty and
spontaneity in describing his response to Region 29’s directive that he
post the Dana notice more credible than the General Counsel’s wit-
nesses who did not recall seeing that notice. (Tr. 422-423; R Exh. 8.)
Moreover, Rebracca testified that he heard about this development from
other drivers in early November, which is consistent with the notice
having been posted in October. (Tr. 215.)
47 Pacheco did not refute the credible testimony of current driver
Nilda Muniz regarding the events of October 6. However, I did not,
however, credit her testimony that Pacheco misrepresented the purpose
of the authorization cards, since she conceded being told that employ-
ees were represented by Local 707. (Tr. 228–231, 238; GC Exh. 15.)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 876
were required to return the completed authorization cards and
collected them on behalf of Local 707.48
On December 11, the Company’s employees ratified a col-
lective-bargaining agreement. The collective-bargaining
agreement contains union-security and checkoff provisions in
Article 3, Sections 3.2 and 3.3, respectively. On December 12,
the Company entered into a collective-bargaining agreement
with Local 707 as the exclusive collective-bargaining repre-
sentative of the Company’s employees in the following modi-
fied contract unit:

All full-time, part-time and casual drivers, mechanics and util-
ity workers working under any Contract between the Compa-
ny and New York City Transit Authority, excluding office
clerical employees, mechanics, utility workers, professional
employees, road supervisors, dispatchers, guards and supervi-
sors as defined in the Act.49

About 2 weeks after execution of the collective-bargaining
agreement, the Company’s dispatchers distributed packets to
drivers and mechanics. The packets included a letter from Ra-
pacioli, dated December 22, Local 707’s union application, a
dues-checkoff form, and union benefits package. The letter
stated that the materials were distributed at Local 707’s request
and instructed drivers to return the completed forms to the dis-
patcher.50
By letter, dated December 27, Rapacioli informed drivers
that, beginning January 12, 2009, they would be able to select
routes, effective January 17.51 On or before January 12, the
Company posted a notice near the door to the driver’s room at
the LaSalle Street facility.52 It stated:

All Employees You must sign the union application in order
to pick. Signing is a condition of employment. If you have
any questions, contact your union rep or Quinto. Respectful-
ly, John Duncan.53

John Russell was hired by the Company as a driver-trainee
on October 20, and remains employed as a driver. He saw the
posting in the LaSalle Street facility and asked Duncan, with
clear indignation, why employees needed to sign the Local 707
forms. Duncan responded that it was a condition of his em-
ployment, since he needed to sign the forms in order to select a
route and, if he was not able to select a route, he could be ter-
48 McElhose was not called as a witness and Rapacioli did not refute
the credible and fairly consistent testimony of Russell, Baumwoll, and
current driver Sal Prestia regarding those introductions. (Tr. 81–85,
140–142, 243, 249; GC Exh. 16.)
49 A handwritten notation on Jt. Exh. 1 indicates that the titles “me-
chanics and utility workers” should be “removed” from the excluded.
The unit set forth in the collective-bargaining agreement is not the same
unit which Arbitrator Shriftman certified on September 11,2008, which
included only drivers in Staten Island, nor is it the same unit referenced
in the Dana notice forwarded to Respondent MV by Region 29 on
October 2, 2008.
50 Rapacioli did not refute Russell’s testimony as to the distribution
of the union packets. (GC Exhs. 3, 23; Tr. 90.)
51 GC Exh. 4.
52 I base this finding on the credible testimony of Russell, Rebracca,
Prestia and Muniz. (Tr. 93–98, 216, 234–235, 247–248.)
53 GC Exhs. 5–6.
minated. Russell then took a picture of the notice with his cell
phone. Later that day, dispatchers began handing out the union
applications and dues-checkoff forms, and they were also
placed on a table in the drivers’ room for employees to pick up
and fill out.54
F. Employees Engage in Activity on Behalf of Another
Labor Organization
Eric Baumwoll was hired by the Company as a driver-trainee
on October 15. However, he was reassigned to a clerical posi-
tion and never served as a driver. Baumwoll was terminated on
December 22.55 During late January to early February 2009,
Baumwoll and Russell solicited support for Local 726, Interna-
tional Union of Journeymen and Allied Trades (Local 726) near
the LaSalle Street facility.56 They distributed authorization
cards and flyers on behalf of Local 726 and asked employees,
as they arrived to or left from work, to return them signed. On
one of those occasions, Baumwoll spoke with and obtained a
signed authorization card from another driver, Susan Santopao-
lo, as she left the trailer. Their interaction was observed by
Rapacioli, who got out of his vehicle and photographed the
encounter. He intercepted her as she was getting in her vehicle
and instructed her to retrieve the authorization card. Santopao-
lo complied, went to retrieve the card and handed it to Rapacio-
li. Rapacioli immediately tore up the card and approached
Baumwoll, cursed and spit at him, vaguely threatened his fami-
ly and threatened to call the police. Russell observed the entire
incident involving Santopaolo, including Rapacioli ripping up
the authorization card, but did not observe Rapacioli’s subse-
quent interaction with Baumwoll.57
54 The credible testimony of Russell, Rebracca, Prestia, and Muniz
regarding the posting of these notices and the employee directives was
not refuted by Rapacioli. (Tr. 94–96, 216–217, 234–235, 239, 246–
249; GC Exh. 5–7.) Osman and Vincent Smaldone, another driver shop
steward for Local 707, testified that they did not see the notice posted
in the drivers’ room. (Tr. 586, 644–645.) I found neither credible, as
both failed to observe a notice that Rapacioli did not dispute posting
and distributing, yet testified that they observed the earlier postings in
September and October. (Tr. 584–586, 643–645; GC Exhs. 8(b) and
13.) Moreover, Smalldone conceded that he was prepared to testify in
the presence of Rapacioli, Pacheco, Osman, and Local 707’s counsel.
(Tr. 655–656, 658.) Osman omitted any reference to that encounter and
testified that she was prepared to testify at work while in the presence
of Pacheco. (Tr. 593–594.) Moreover, as previously stated, she was
not a credible witness.
55 GC Exh. 31, Div. 156(12).
56 GC Exh. 2.
57 I based this finding on the versions provided by Russell and
Baumwoll. Neither provided a specific date as to when the Santpaolo
incident occurred, except to state that it occurred between late January
and early February 2009. (GC Exh. 2; Tr. 101–108, 128–130, 144–
147, 149–150, 159–162.) Moreover, there was controversy over
Baumwoll’s separation from the Company and Rapacioli’s vague con-
tention that Baumwoll served as a spy for another organization while
employed by the Company. Nevertheless, Rapacioli essentially con-
ceded that the incident occurred. He testified that he observed Baum-
woll hand an authorization card to Santpaolo outside the LaSalle Street
facility, and then he spoke with Santpaolo and yelled at Baumwoll. I
found it less than credible that an employee, who did not testify, would
simply approach Rapacioli and express concern that she did something
wrong. (Tr. 436–437.) I did not, however, credit vague and undated

MV PUBLIC TRANSPORTATION 877
G. Rapacioli Threatens Russell with Discharge
At the end of April 2009, Russell went to the South Avenue
facility to get a new identification card. While in the facility,
he entered a classroom of trainees while they were on a break
and expressed his support for Local 1181. The instructor was
not present at the time. Russell returned the next day and re-
ceived a note instructing him to see Rapacioli. After his shift,
Russell went to see Rapacioli in his office. In a profanity-laced
tirade expressing disdain for Local 1181, Rapacioli warned
Russell that

I don’t want to hear you ever . . . talking about that union in
my building again. If I hear you talking about that in the
building again I’m going to fire you. And tell [Local 1181 of-
ficials] from Brooklyn to [do something else with them-
selves]. This is my company.58
III. LEGAL ANALYSIS
A. The Unlawful Recognition Charges
The complaint alleges that the Company violated Section
8(a)(1), (2), and (3) of the Act and Local 707 violated Section
8(b)(1)(A) and 8(b)(2) by entering into a recognition agreement
at a time when Local 707 did not employ a representative seg-
ment of its ultimate employee complement and was not yet
engaged in its normal business operations, and then entering
into and maintaining a collective-bargaining agreement. The
Company and Local 707 denied the allegations and assert that
the complaint is barred by the statute of limitations set forth at
Section 10(b) of the Act.
“An employer violates Section 8(a)(2) of the Act when it ex-
tends recognition to a union that does not represent an unco-
erced majority of employees.” Garner/Morrison, 353 NLRB
719, 723 (2009) (citing Ladies Garment Workers v. NLRB, 366
U.S. 731 (1961)); Dedicated Services, 352 NLRB 753, 761
(2008). Further, by entering into, maintaining, and enforcing a
collective-bargaining agreement containing a union-security
clause at a time when such a union did not represent an unco-
erced majority of employees, the employer violates Section
8(a)(3) of the Act. Duane Reade Inc., 338 NLRB 943, 944
(2003), enfd. 99 Fed. Appx. 240 (D.C. Cir. 2004). Similarly,
by accepting unlawful assistance from an employer, a union
violates Section 8(b)(1)(A) of the Act, Ladies Garment Work-
ers, supra. Furthermore, by entering into, maintaining, and
enforcing a collective-bargaining agreement with a union-
security clause at a time when it does not did not represent an
uncoerced majority of employees, the union violates Section
8(b)(2) of the Act as well, Dairyland USA Corp., 347 NLRB
references by Russell and Baumwoll to other incidents involving Ra-
pacioli.
58 The testimony of Russell, Rapacioli, and Training Manager Clar-
ence Smith establishes that Rapacioli met with Russell concerning his
classroom solicitation. (Tr. 110–112, 464–465, 732–733.) Rapacioli
denied, however, speaking to Russell about unions and insisted he
simply told him he would fire him if he ever disrupted a class again.
(Tr. 443.) Yet, he conceded that Russell did not disrupt a class, as the
instructor was not present, and that he mentioned Russell’s statements
to the trainees about changing union representation. (Tr. 444.)
310 (2006), enfd. 273 Fed. Appx. 40 (2d Cir. 2008); Duane
Reade, supra.
In determining whether an employer prematurely recognized
a labor organization, the Board applies a two-part test: (1) the
employer must employ a substantial and representative com-
plement of its projected work force, that is, the job or job clas-
sifications designated for the operation must be substantially
filled; and (2) the employer must be engaged in normal busi-
ness operations. This approach was first articulated in Hilton
Inn Albany, 270 NLRB 1364, 1365 (1984), and reaffirmed in
Elmhurst Care Center, 345 NLRB 1176, 1177–1178 (2005),
which explained the balancing act involved in such situations:
“The Board’s overall goal is to accommodate the right of em-
ployees who have already been hired to representation without
undue delay to the right of employees yet to be hired to have
their bargaining representative selected by a substantial and
representative complement of employees engaged in the em-
ployer’s normal business operations.”
1. The employee work force at the time of the recognition
The General Counsel contends that the 22 drivers employed
at the time of recognition were neither substantial nor repre-
sentative of the “the ultimate projected employee complement.”
The Company’s proposed schedule, which was incorporated
into the Contract, was expected to reach an operational level of
150 vehicles by approximately September 2009. The General
Counsel, however, relies on the fact that the Company was
operating 124 vehicles and employed approximately 309 em-
ployees as of December 2009. Applying the 30 percent thresh-
old applied by the Board in General Extrusion, 121 NLRB
1165 (1958), the General Counsel contends that a substantial
and representative amount would be approximately 92 employ-
ees—an employment level reached in mid to late October 2008.
Alternatively, the General Counsel notes that, even based on
the Company’s “ramp-up” chart projecting 267 drivers for 150
vehicles, a representative complement would be 80 drivers—an
employment level reached after October 2.59 The Company
contends that it employed a representative complement of its
projected work force at the time of recognition because it had
“no guarantee, and could have no certainty, that its employee
complement would expand significantly beyond the size at the
time of recognition.”60
The Board has frequently relied on General Extrusion Co.,
121 NLRB at 1167, for guidance in determining, in an expand-
ing unit situation, whether the Company employed a substantial
and representative complement of its projected work force as of
the date of the recognition. In that case, the Board held that the
minimum workforce threshold was met where “at least 30 per-
cent of the complement employed at the time of the hearing had
been employed at the time the contract was executed, and 50
percent of the job classifications in existence at the time of the
hearing where in existence at the time the contract was execut-
ed.” See, for example, Dedicated Services, 352 NLRB at 762,
where the Board found that the employer did not meet the
threshold where, at the time of recognition, it “employed far
59 GC Br. 48.
60 R. Br. 14.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 878
fewer than 30 percent of its normal complement of unit em-
ployees.” In Hilton Inn Albany, 270 NLRB at 1366, on the
other hand, the judge found that the employer had not em-
ployed a substantial and representative complement even
though it had hired 33–35 percent of the full work force and 55
percent of the classifications. The judge found that only a
small percentage of these employees had performed any work
and few had worked more than 8 hours. The Board agreed with
the judge and noted that a mere 8 to 15 percent of those em-
ployees performed any work or worked for more than 8 hours.
The Company and Local 707 entered into a recognition
agreement on September 12. Based on an arbitrator’s certifica-
tion of authorization cards, the parties assumed, for the purpose
of legal argument, that there were 22 drivers on the payroll as
of that date. That level of work force amounted to a mere 7.9
percent of the 280 drivers on the payroll as of the date of the
hearing. Moreover, no mechanics has been hired by that point
and, thus, the other classification ultimately incorporated into
the collective bargaining agreement was not yet in existence.
Alternatively, the 22 drivers constituted 8.2 percent of the 267
drivers that the Company was expected to ramp-up to within 10
months.61 Both approaches fall far short of the General Extru-
sion threshold of 80 to 84 drivers that would have been consid-
ered a substantial and representative portion of the projected
work force.62
Lastly, the Company’s assertion that it was still uncertain on
September 12 as to the amount of employees it would be hiring
is belied by the terms of the Transit Authority’s acceptance on
September 5 of the Company’s bid and award of a
$422,066,234.00 10-year contract to operate 150 vehicles, with
an expansion to 300 vehicles. The Start Up/Expansion Sched-
ule set forth a specific schedule that would rise incrementally to
an initial operational level of 150 vehicles by September 2009.
Although several pleas of support for the prior Staten Island
service provider appeared in the local media, there is no credi-
ble evidence casting doubt as to the finality of the notice of
award/notice to proceed issued by the Transit Authority.
2. Whether the Company was engaged in normal
business operations
The General Counsel and Local 1181 also assert that the
Company was not engaged in its normal business operations
when it recognized Local 707 because, at the time, unit em-
ployees were engaged only in training activities. Applying
Elmhurst Care Center, Hilton Inn, and Albany Dedicated Ser-
vices, they contend that the Company’s normal business opera-
tions consist of driving disabled and elderly clients to appoint-
ments within New York City. The Company cites Klein’s
61 The Board typically applies such an analysis based on the work
force amount as of the date of the hearing. However, hearings occur
anywhere from several months to years after accrual, while the facts in
this case include actual benchmarks as of the date of the unlawful
recognition by which the initial ramp-up to approximately 150 vehicles
would be achieved by September 2009.
62 Utilizing the 18 employees listed on the payroll record, that work
force amounted to 6.4 percent of the 280 drivers on the payroll as of the
date of the hearing and 6.7 percent of those on the payroll within the 10
month ramp-up period.
Golden Manor, 214 NLRB 807 (1974), for the proposition that
“essential training and preparation constitutes normal business
operations.”63
The second prong of the Elmhurst Care Center test is prem-
ised on the notion that “employees are better able to register
their electoral choice when they are actually engaged in the
work for which representation is sought.” As such, the Board
found that an employer is not engaged in “normal business
operations” when the place of employment is not open to the
public, employees are “working relatively few hours” and em-
ployees’ responsibilities are “limited to training and other tasks
in preparation for receiving” customers. 345 NLRB at 1177.
In Elmhurst Care Center, supra, the employer, a skilled nurs-
ing facility operator, and the union executed a collective-
bargaining agreement nearly a month before the first patient
was admitted to the facility. The nursing staff was participating
in training and other preparations to set up the facility to re-
ceive patients, such as making beds and setting up equipment.
The Board determined that the employer was not engaged in
normal business operations at the time the employer voluntarily
recognized the union. While the Board admitted that “training
may be essential to the operation of the business, . . . it is not
the business itself.” The Board balanced the “interests of the
first group of employees hired but not yet performing the duties
for which they were employed and the interests of the antici-
pated full complement of unit employees.” “[W]aiting to grant
recognition until the facility had opened would have increased
the number of unit employees participating in the decision re-
garding representation while having minimal impact on those
employed earlier.” Id. at 1178.
Similarly, in Hilton Inn Albany, 270 NLRB at 1366, the
Board found that the employer’s hotel was not in its normal
business operations at the time of the voluntary recognition.
The hotel was not yet open to the public and the only work
being done was the training of cooks and kitchen personnel,
and performance of housekeeping duties. By the date of recog-
nition, several categories of hotel workers, including waiters,
bus boys and maintenance employees, had not worked at all.
The Board also noted that the “size of the employee comple-
ment actually working and the number of hours worked in-
creased so rapidly immediately following recognition” that the
employer was not engaged in normal business operations, nor
had it engaged in full-scale training in preparation for the open-
ing.
Under a different set of facts, the Company’s reliance on
Klein’s Golden Manor, 214 NLRB 807 (1974), might have
merit. In that case, the Board deemed the recognition lawful,
even though the employer was still training its workforce, since
the employees “were actually performing preparatory services
for the employer that were necessary for the operation of that
facility.” Id. at 813–814. As noted by the dissent in Elmhurst
Care Center, “the training work in Klein’s Golden Manor—in
preparation for the facilities opening—was essentially the same
as the work after it opened its doors to patients” and the majori-
ty erroneously distinguished that earlier case because, “[i]n
both cases, there were no patients at the time of recognition and
63 R. Br. 15.

MV PUBLIC TRANSPORTATION 879
the employees were engaged essentially in the same type of
work before and after opening day.”
Applying the legal principles articulated in Klein’s Golden
Manor and the dissent in Elmhurst Care Center, the training
involved at the Company’s facility on September 12 was not
the same type of work that employees would perform after
operations commenced on or around October 1. The type of
work that the drivers would perform after October 1 consisted
of operating vehicles to transport elderly and disabled passen-
gers in or around Staten Island. On the date that the Company
and Local 707 entered into the recognition agreement, however,
employees were still in classroom training at the Lake Avenue
facility and had not yet received training operating vehicles at
the LaSalle Street facility. This nuance is particularly im-
portant where, as here, half (11 of 22) of those who began
classroom instruction would not successfully complete the rig-
orous training course.
Based on the foregoing, the Company’s recognition of Local
707 as the labor representative of its employees, and the collec-
tive-bargaining agreement that ensued, at a time when the
Company did not employ a representative segment of its ulti-
mate employee complement and was not yet engaged in its
normal business operations, violated Section 8(a)(2) and (1) of
the Act. Having received unlawful assistance from the Compa-
ny, Local 707 violated Section 8(b)(1)(A) and 8(b)(2). Dairy-
land USA Corp., supra.
B. The 10(b) Defense
Notwithstanding the aforementioned violation, the Company
contends that Russell’s unlawful recognition and assistance
charges are untimely under Section 10(b) of the Act because
they accrued on September 12—the date of recognition—but
were not filed until March 31, more than 6 months later. Rely-
ing on Local Lodge No. 1424 (Bryan Mfg.) v. NLRB, 362 U.S.
411, NLRB v. Triple C Maintenance, Inc., 219 F.3d 1147 (10th
Cir. 2000), Texas World Service Co. v. NLRB, 928 F.2d 1426
(5th Cir. 1991), and R.J.E. Leasing Corp., 262 NLRB 373
(1982), the Company insists that the 10(b) period commenced
to run when any employee received notice of the September 12
recognition agreement, not every time an individual employee
learned of the potential claim. The General Counsel, relying on
Dedicated Services, supra, contends that the 10(b) period was
triggered on October 20 when Russell commenced employment
and learned of the recognition. Alternatively, the General
Counsel suggests that the time period commences when: (1)
other employees received clear and unequivocal notice of a
violation, which could have occurred no earlier than October 2,
or (2) a representative portion of the ultimate employee com-
plement was hired. The Charging Party’s alternative theory
essentially suggests that the Dana notice, which was premised
on unlawful conduct and indicated that a charge could not be
filed more than 45 days after it was posted, was misleading and
should be deemed tolled from the date of posting, October 5,
until November 20.
It is undisputed that, on August 28, the Company and the
Union executed a card check and neutrality agreement requir-
ing the Company to recognize the Union as the bargaining rep-
resentative for unit employees upon a showing of majority sta-
tus. On September 12, after an arbitrator certified that a majori-
ty of the 22 unit employees signed authorization cards for Local
707, the Company and Local 707 entered into a recognition
agreement. The Company posted the Dana notices on the bul-
letin board in the drivers’ room on October 5. On October 20,
Russell began working for the Company and attended his first
training class, during which he learned that the Company rec-
ognized Local 707 as the bargaining representative for unit
employees.
Section 10(b) of the Act states, in pertinent part, that “no
complaint shall be issued based upon any unfair labor practice
occurring more than 6 months prior to the filing of the charge
with the Board.” However, this limitations period “does not
begin to run until the charging party has ‘clear and unequivocal
notice,’ either actual or constructive, of a violation of the Act.”
St. Barnabas Medical Center, 343 NLRB 1125, 1126 (2004),
quoting Leach Corp., 312 NLRB 990, 991 (1993). Even if the
charging party lacks actual notice of an unlawful recognition,
Section 10(b) will still bar a claim outside the statutory period
if the charging party had constructive notice of the recognition.
Schaefer Group, Inc., 344 NLRB 366, 367–368 (2005) (party
charged with constructive knowledge of unfair labor practice
where it could have discovered the alleged misconduct through
the exercise of reasonable diligence). On the other hand, “an
unfair labor practice charge will not be time-barred if the “de-
lay in filing is a consequence of conflicting signals or otherwise
ambiguous conduct by the other party.” A & L Underground,
302 NLRB 467, 469 (1991). Moreover, the party raising Sec-
tion 10(b) as a defense has the burden of proving that the com-
plaint is time barred. Broadway Volkswagen, 342 NLRB 1244,
1246 (2004).
As the charge was not filed until March 31, a straightforward
application of the 6-month time limitation would bar any claims
that accrued prior to September 30. The first obstacle for the
10(b) defense is that neither the Company nor Local 707 pro-
vided notice of their September 12 recognition agreement to
employees during September. Based on the credible testimony,
the notices were not posted on the bulletin board in the drivers’
room during that month. Even if they had been, they would not
have been reasonably observable, as the bulletin board and
room walls were out of control with papers hanging all over.
The lack of a clear notice posting in September negates applica-
tion of Section 10(b).
Assuming, arguendo, that employees did learn of the recog-
nition in September, the issue becomes whether the Company
can meet its burden of demonstrating that the 10(b) period be-
gan running on September 12 or the day that the first employee
learned of the recognition. The cases cited by the Company
support the concept that the limitations period begins to run
when a party first learns of an unfair labor practice. They are,
however, distinguishable. In Bryan Manufacturing, 362 U.S. at
419, the Supreme Court held that charges were time-barred
where employees filed charges more than 6 months after execu-
tion of the allegedly unlawful collective bargaining agreement.
It premised its ruling, however, on a rejection of employees’
assertions that ongoing enforcement of the agreement was a
continuing violation. In this case, such a concept appears to
rule out the Charging Party’s tolling theory based on a continu-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 880
ously defective and misleading Dana notice. It is, however, the
posting of the Dana notice on October 5 or Russell’s hiring on
October 20 that are alleged by the General Counsel as the ac-
crual dates.
NLRB v. Triple C Maintenance, Inc., supra, involved an em-
ployer’s attempt, 3 years after the fact, to escape from an
agreement it entered into with the union. In that case, the Court
of Appeals agreed with the Board’s interpretation of the agree-
ment as one within the meaning of Section 9(a), rather than
Section 8(f), and its preclusion of the employer from challeng-
ing the validity of the agreement based on the 10(b) limitations.
219 F.3d at 1159. Unlike that employer, who had notice of a
potential claim for the 3 year period at issue, the Company’s
employees in this case were unaware of the recognition agree-
ment until October 5 at the earliest and, in Russell’s case, until
October 20.
In Texas World Service Co. v. NLRB, supra, the Court of
Appeals rejected an employer’s 10(b) defense, which invoked
Bryan Manufacturing’s proscription against resurrecting an
earlier, otherwise time-barred unfair labor practice. The court
premised its ruling on the fact that the unlawful recognition of a
union occurred at a time when the employer had not yet hired
employees and no one could have challenged the agreement.
The Board’s affirmance of the judge’s ruling in R.J.E. Leasing
Corp., supra, is consistent with that result. In that case, the
judge rejected a 10(b) defense to a prehire agreement on the
ground that employees first became aware of the disputed
agreement well within the 6-months limitation period. 262
NLRB at 381–382. Here, again, the Company’s employees in
this case were unaware of the recognition agreement until Oc-
tober 5 at the earliest.
Dedicated Services, Inc., supra, the primary case cited by the
General Counsel and Charging Parties, is distinguishable, but
provides guidance. In that case, Local 1181 filed a charge al-
leging that the employer rendered unlawful assistance to Local
713 and entered into a collective-bargaining agreement with
Local 713 at a time when Local 713 did not represent an unco-
erced majority of employees in the bargaining unit, the em-
ployer did not employ a representative complement of employ-
ees and was not engaged in its normal operations. At the time
of the recognition, the employer had not yet hired any employ-
ees. More than 6 months later, Local 1181 filed its charge. The
employer claimed that Local 1181, which already represented
the employees, had constructive notice of the recognition with-
in the 10(b) period because four job applicants were given un-
ion authorization cards and told that Local 713 represented the
company’s employees. Judge Fish disagreed, holding that
knowledge of possibly unlawful acts on the part of any em-
ployees was not attributable to Local 1181, which was other-
wise unaware of the recognition agreement between the em-
ployer and Local 713. He concluded that Local 1181 lacked
clear and unequivocal notice outside the statutory period and
rejected the untimeliness defense. 352 NLRB at 760.
The Board agreed with Judge Fish that the employer violated
Section 8(a)(2) and (1) by recognizing Local 713 as the exclu-
sive collective-bargaining representative of the employer’s
employees at a time when Local 713 had not obtained any
signed authorization cards from employees and, thus, did not
represent a majority of the employer’s employees. However,
the Board sidestepped Judge Fish’s cogent analysis of alterna-
tive accrual theories raised by the General Counsel, including
the notion that a later date might be more appropriate for an
accretion analysis.
One possible implication of the Board’s avoidance of the
10(b) issues raised in Dedicated Services, Inc. is that the Act’s
limitations provision was tolled as to any future charging party
until it acquired clear and unequivocal notice of the unlawful
recognition. Relying on that concept, however, would be peri-
lous since Judge Fish found, and the Board agreed, that notice
to employee/members of the union did not constitute notice to
the union. In this case, on the other hand, we are dealing with a
never-ending potential supply of charging parties in a continu-
ously growing work force. Russell learned of the recognition
agreement when he was hired on October 20. He filed his
charge on March 31, well within the 6-month period thereafter.
The 199 days that elapsed from the date of the recognition
agreement (September 12) to the filing of Russell’s charge
(March 31) was not significantly greater than the 188 days that
elapsed during the same period in Dedicated Services, Inc.
A reasonable approach in this case is found in Leach Corp.,
312 NLRB 990 (1993). That case, which involved a charge for
alleged contract repudiation, sheds light on the Board’s applica-
tion of Section 10(b) in situations involving the earliest stages
of work force creation. Recognizing that an employer would be
obligated to recognize the union representing relocated em-
ployees only if the relocated employees constituted a substan-
tial percentage of the new employee compliment, the Board
held that Section 10(b) would start running on the date when
the transfer process was substantially completed. Accordingly,
the Board rejected the employer’s contention that the limita-
tions period began to run when the first employees were hired,
holding that unit employees could not have suspected that the
recognition was unlawful until a representative segment of the
ultimate employee complement was hired. In our case, it can
be argued that, while the Company knew to the extent to which
it would hire, there is no proof that employees had similar
knowledge as of September 12.
Applying the principles of Leach Corp. to the facts here, it is
probably a stretch to suggest tolling the statute of limitations
until the work force was essentially complete—in this case, by
September or October 2009. A more reasonable approach bal-
ancing the interests of employees seeking to organize and the
proscription against representation based upon union recogni-
tion by an unrepresentative minority would deem accrual as of
the date when the company hired a representative segment of
the ultimate complement. Applying the General Extrusion
threshold, a representative segment would have been approxi-
mately 84 employees (280 x 30%). Such a point was not
reached until later in October 2008 when the Company record-
ed a payroll of over 90 employees.64 Russell, the Charging
Party, was hired around that time—on October 20—and ob-
tained notice of the Company’s recognition agreement with the
Local 707 on that date. There is certainly no evidence that he
obtained knowledge before then.
64 GC Br. 54–56.

MV PUBLIC TRANSPORTATION 881
Assuming, arguendo, that the limitations period was not re-
vived on October 20, when Russell was hired and learned of the
recognition agreement, an appropriate earlier accrual date
would be on or after October 5, when employees learned of
Local 707’s representative status. Under that scenario, the
latest a charge would need to be filed to escape the bar of the
10(b) limitation would be April 5. Since Russell filed his
charge on March 31, and the Company received notice of the
charge on April 2, the charge was timely filed. Based on the
foregoing, the dismissal pursuant to Section 10(b) is denied.
C. Coercing Employees to Sign Authorization Cards
and Dues-Checkoff Forms
An employer violates Section 8(a)(1), (2), and (3) of the Act
when it requires employees to sign union authorization cards as
a condition of employment at a time when there is no lawful
union-security clause in effect. It is also a violation of Section
8(a)(2) of the Act to require employees to sign a checkoff card
even where a valid union-security clause exists. Dedicated
Services, Inc., 352 NLRB at 760.
On October 20, the Company directed its employees to sign
authorization cards on behalf of Local 707. Rapacioli intro-
duced Pacheco, Local 707’s representative, to the trainees,
authorization cards were passed out and they were directed to
sign the cards as a condition of their employment. Although
there was credible evidence that the Company supervisors ex-
erted the same pressure on October 6 and November 10, the
pleadings were not conformed to such evidence at trial. Ac-
cordingly, I do not incorporate them into my conclusions of
law.
Additionally, in a letter, dated December 22, Rapacioli in-
structed all employees to complete Local 707’s membership
application and return it to the dispatcher. In January, the
Company posted a sign in the drivers’ room at its LaSalle Street
facility instructing all employees to sign Local 707’s applica-
tion in order to pick up their schedules and specifically stating
that “[s]igning is a condition of employment.” Supervisor
Duncan reiterated this requirement when asked about it by Rus-
sell and added that any employee who did not comply would
not permitted to select a driving route and, thus, “could be ter-
minated.” Later that day, dispatchers began handing out the
union applications and dues-checkoff forms, and they were also
placed on a table in the drivers’ room. Under the circumstanc-
es, by forcing employees to sign Local 707’s authorization
cards and membership applications, the Company violated
Section 8(a)(2) and (1) of the Act.
D. The Company’s Response to Union Solicitation
Outside Its Facility
On several occasions in late January or early February, Rus-
sell and Baumwoll were soliciting on behalf of Local 726 in
front of the Company’s LaSalle Street facility. Rapacioli saw
them speak with another driver, Susan Santopaolo, who signed
an authorization card for Local 726 and handed it to Baumwoll.
Rapacioli called her over and directed her to retrieve her card.
Santopaolo complied and handed the card to Rapacioli, who
proceeded to rip it up. I did not, however, rely on the testimony
of nonemployee Baumwoll that Rapacioli also spat at him and
threatened to call the police and inflict unspecified harm upon
his family. Russell, the only employee involved in the concert-
ed activity, apparently did not observe those particular actions
and statements, and they are not actionable here.
An employer’s mere observation of open, public union activ-
ity on or near its property is not unlawful. Fred’k Wallace &
Son, Inc., 331 NLRB 914 (2000). By April, however, Baum-
woll was no longer an employee or an applicant seeking em-
ployment with the Company. His activity was solely as an
advocate for Local 1181. While the evidence reveals that Rus-
sell was in the vicinity, there is no credible evidence established
that he or any other employee observed or heard about Ra-
pacioli’s subsequent interaction with Baumwoll. Accordingly,
that portion of the April incident does not constitute a violation
of Section 8(a)(1). See Wackenhut Corp., 348 NLRB 1290,
1290 (2006), citing NLRB v. Town & Country Electric, Inc.,
516 U.S. 85, 94–95 (1995).
There was credible evidence, however, that Russell observed
the earlier portion of this incident. He observed Rapacioli take
photographs as he and Baumwoll solicited support for Local
1181. In doing so, Rapacioli tended to intimidate Russell, a
current employee, and instilled fear of future reprisal if he con-
tinued to engage in such behavior. In re Orland Park Motor
Cars, Inc., 333 NLRB 1017, 1041 (2001); Athens Disposal Co.,
315 NLRB 87, 98 (1994). Similarly, by directing Santopaolo to
retrieve her authorization cards from the union and then pro-
ceed to rip it up, he coerced or restrained Santopaolo and Rus-
sell from exercising their rights under Section 7 of the Act in
violation of Section 8(a)(1). Don Thomas Bus Co., 2006 WL
839168 at 9 (Mar. 28, 2006).
E. The Company’s Prohibition Against Union Solicitation
in April 2009
In April, Russell was at the Company’s South Avenue facili-
ty on administrative business and took the opportunity to ap-
proach trainees in a classroom during a break. He advocated on
behalf of Local 1181. MacElhose, the instructor, was not pre-
sent at the time, but a trainee subsequently passed along Rus-
sell’s comments to Rapacioli. Russell was called into Rapacio-
li’s office the next day and admonished for speaking to the
trainees on behalf of Local 1181. Rapacioli expressed his ani-
mosity toward Local 1181 and threatened to discharge Russell
if he ever did it again in the Company’s facility.
An employer may forbid union solicitation during worktime,
if that prohibition also extends to other subjects not associated
or connected with the employees’ work tasks. Our Way, 268
NLRB 394 (1983). Accord: Jay Metals, Inc., 308 NLRB 167
(1992). However, an employer violates the Act when employ-
ees are forbidden to discuss unionization, but are free to discuss
other subjects unrelated to work.” Jensen Enterprises, 339
NLRB 877, 878 (2003). Further, in considering whether com-
munications from an employer to its employees violate the Act,
“the Board applies the objective standard of whether the remark
tends to interfere with the free exercise of employee rights.
The Board does not consider either the motivation behind the
remark or its actual effect.” Miller Electric Pump & Plumbing,
334 NLRB 824 (2001).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 882
In this case, the credible evidence establishes that the train-
ees were not in the midst of instruction or any other type of
work activity when Russell addressed them. The instructor was
not present and they were on a break. Nor was there evidence
that the Company had a rule prohibiting nonwork-related con-
versation during instructional breaks or any other time while
employees were elsewhere in the facility. As such, Rapacioli’s
statement conveyed the message that Russell was prohibited
from speaking about Local 1181 to anyone—anywhere in the
building and at anytime, even outside the classroom. It would
not “have been understood as merely curbing social discussions
during a busy period.” See Scripps Memorial Hospital Encini-
tas, 347 NLRB 52 (2006). Under the circumstances, the Com-
pany’s discriminatory prohibition on union discussion while
employees were on a break in the training room or anywhere
else in the facility, and threatening to discharge an employee if
he did it again, violated Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. The Company is an employer engaged in commerce with-
in the meaning of Section 2(2), (6), and (7) of the Act.
2. Local 707 and Local 1181 are labor organizations within
the meaning of Section 2(5) of the Act.
3. By directing and urging its employees or applicants for
employment on October 20, 2008, to sign cards authorizing
Local 707 to represent them as a condition of employment, and
by informing its employees and applicants for employment on
December 22, 2008, and early January 2009 that that they had
to sign such cards in order to be employed by it and authorizing
dues for Local 707 to be deducted from their salary, the Com-
pany violated Section 8(a)(2) and (1) of the Act.
4. By recognizing Local 707 as the collective-bargaining
representative of its employees, on September 12, 2008, at a
time when the Company did not employ a representative seg-
ment of its ultimate employee complement and was not yet
engaged in its normal business operations, the Company violat-
ed Section 8(a)(2) and (1) of the Act.
5. By executing a collective-bargaining agreement with Lo-
cal 707 on September 12, 2008, which agreement contained a
union-security clause, notwithstanding the fact that Local 707
did not represent an uncoerced majority of the Company’s
employees, the Company violated Section 8(a)(1), (2), and (3)
of the Act.
6. Having accepted unlawful recognition from the Company
on September 12, 2008, receiving unlawful assistance from the
Company on October 20, 2008, and entering into and maintain-
ing the aforementioned collective-bargaining agreement, Local
707 violated Sections 8(b)(1)(A) and 8(b)(2) of the Act.
7. By photographing employees as they engaged in lawful
union activity, directing an employee to retrieve her signed
authorization card from Local 1181, confiscating it and ripping
it up, and threatening an employee with discharge because he
supported Local 1181 and prohibiting him from speaking about
Local 1181, the Company violated Section 8(a)(1).
8. The above-described unfair labor practices affect com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
REMEDY
Having found that the Company and Local 707 have engaged
in certain unfair labor practices, I shall recommend that they
cease and desist and take certain affirmative action designed to
effectuate the policies of the Act. Having found that the Com-
pany unlawfully recognized and entered into a collective-
bargaining agreement on September 12, 2008, I shall recom-
mend that the Company withdraw and withhold all recognition
from Local 707 as a collective-bargaining representative of its
employees, and order the Company and Local 707 to cease
applying to their employees and members the terms of the col-
lective-bargaining agreement, or any extension, renewal, modi-
fication, or superseding agreement,65 unless or until Local 707
is certified by the Board as such representative. I shall also
recommend that the Company and Local 707 be ordered jointly
and severally to reimburse their employees and members, pre-
sent and former, for dues and initiation fees involuntarily ex-
acted from them as a result of the unlawful application of the
union-security clause in the collective-bargaining agreement
entered into between the Company and Local 707, with interest
to be computed in the manner prescribed in New Horizons for
the Retarded, 283 NLRB 1173 (1987). However, reimburse-
ment shall not extend to those employees who voluntarily
joined and became members of Local 707 prior to September
12.
[Recommended Order omitted from publication.]
65 Nothing in this decision should be construed as requiring the
Company to rescind benefits conferred as the result of the unlawful
application of contract provisions to them, see, e.g., Frontier Telephone
of Rochester, supra at 1278 fn. 24; Kaiser Foundation Hospitals, 343
NLRB 57, 58 (2004).