NEW YORK PARTY SHUTTLE, LLC

National Labor Relations Board - Administrative Judge Opinions

Sep 19, 2012

02-CA-073340 (N.L.R.B. Sep. 19, 2012)

JD(NY)–29–12
Bronx, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
NEW YORK PARTY SHUTTLE, LLC
Employer
and Case No. 02-CA-073340
FRED PFLANTZER
An Individual
Alejandro Ortiz, Esq. and Ruth Weinreb, Esq.,
Counsel for the Acting General Counsel
C. Thomas Schmidt, Esq., Counsel for the
Respondent
DECISION
Raymond P. Green, Administrative Law Judge. I heard this case in New York, New York
on August 7, 2012. The charge and the amended charge were filed on January 27 and March
16, 2012. The Complaint that was issued on May 30, 2012 alleged as follows:
That on or about February 11, 1012, the Respondent discharged Pflantzer because he
engaged in union and concerted protected activity by (a) using electronic mail to discuss with
employees of other employers in New York about terms and conditions of employment and (b)
communicated by way of social media with employees of the Respondent and employees of
other employers about terms and conditions of employment.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed, I make the following:
Findings of Fact
I. Jurisdiction
The parties agree and I find that the Employer is engaged in commerce as defined in
Section 2(2), (6) and (7) of the Act.
II. The alleged unfair labor practice
The Employer operates an enterprise under the name of On Board Tours that provides a
variety of guided tours in New York City. The Company’s CEO and General Counsel is C.
Thomas Schmidt and the person who directly supervises the New York operation is Donald
White. It is stipulated that both individuals are supervisors and agents within the meaning of the
Act.
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A. The status of Pflantzer
The Charging Party, Fred Pflantzer, started to work for the Respondent as a tour guide
in October, 2011. The Respondent contends that Pflantzer was an independent contractor and
not an employee. I do not agree and conclude that he is an employee within the meaning of the
Section 2(3) of the Act.
The Respondent either owns or leases tour buses which it is responsible for maintaining.
It utilizes a group of about 17 to 18 tour guides on a regular basis and another group of about 8
or 9 bus drivers. The record shows that Pflantzer, and presumably all of the other tour guides,
are paid on an hourly basis, and that he received company checks from which were deducted
social security taxes and federal and state income taxes. For tax purposes, tour guides are
given W2 statements for filing with the IRS and the New York State Finance Department.
Additionally, the Company makes payments into the New York State unemployment insurance
fund so that these individuals can be entitled to unemployment insurance in the event of layoffs.
All employees, including tour guides, are eligible for a company provided health insurance
policy.
The tour guides typically notify Mr. White on each Thursday about their availability for
the following week. White typically responds on Saturday or Sunday, giving each tour guide and
driver their weekly schedule. 1 In doing so, he decides what routes they are to cover and how to
pair up the drivers and guides so as to make a harmonious team. The Company provides a
variety of different tours and the routes for each one is determined by management. That is,
once a tour route has been set, neither the driver not the guide has the option to vary it.
However, each guide has his or her own talking points which is not directed or controlled by the
Company.
Mr. Schmidt agrees that it is very rare for there to be a written contract between the
Company and a tour guide and that there was no such contract with Mr. Pflantzer. Once
Pflantzer has notified the company of his availability for a given week, he works exclusively for
the Respondent on the schedule that he receives. I do note, however, that Pflantzer has his
own tour guide company, which he operates out of his home and has notified White that he is
often not available on weekends when he operates his own business. 2
The test of whether an individual is an independent contractor or an employee is the
common law of agency right-to-control test. NLRB v United Insurance Co., 390 U.S. 254, 256,
(1968). Pursuant to that test, an employer-employee relationship exists when the employer
reserves the right to control not only the ends to be achieved but also the means to be used to
achieve those ends. On the other hand, where the control is reserved only as to the result, an
independent contractor relationship exists. Gold Medal Baking Co. Inc., 199 NLRB 895, (1972).
See also Standard Oil Co., 230 NLRB, 967, 968 (1987).

1 The initial schedules will depend on the amount of customers who sign up for tours for the
upcoming week. To ensure coverage, White will also assign a few guides and drivers to on call status, as
it is not unusual for new customers to be acquired during the week.
2 Tour guides are licensed by New York’s Department of Consumer Affairs and once having obtained
a license can work as a guide for any company providing such services or independently on his or her
own behalf.
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In BKN, Inc., 333 NLRB No. 14, (2001), the Board listed a number of factors to be taken
into account. These include: (a) The extent of control that the employing entity exercises over
the details of work; (b) Whether or not the one employed is engaged in a distinct occupation or
business; (c) The kind of occupation, including whether in the locality, the work is usually done
under the direction of the employer or by a specialist without supervision; (d) The skill required
in the particular occupation; (e) Whether the employer or the workman supplies the
instrumentalities, tools, and the place of work for the person doing the work; (f) The length of
time for which the person is employed; (g) The method of payment, whether by the time or by
the job; (h) Whether or not the work is part of the regular business of the employer; (i) Whether
the parties believe they are creating the relation of master and servant; and (j) Whether the
principal is or is not in business. [Restatement of the Law of 220 Agency 2d, pp. 485-486.] See
also NLRB v. United Insurance Company, 390 U.S. 254; Community for Creative Non-Violence
v. Reid, 490 U.S. 730.
In my opinion, the parties understood their arrangement to be that of
employer/employee. There was no written contract or other documents describing their
relationship as anything other than that of employer and employee. This is confirmed by the
fact that Pflantzer was issued a W2 statement for tax purposes and had federal, state and social
security taxes deducted from his earning. Additionally, he worked on a regular basis for the
Company on tours that were set by the company’s management and with work partners who
were determined by management. It is true that he had discretion in determining how he would
address the customers, but his discretion was constrained by the fact that the tour route (and
therefore the things to be pointed out), were established by the Company and could not be
deviated from either by him or the driver. The bus, obviously being the main tool of the trade, is
provided by the Respondent, whereas the skill of communicating to tourists is the principle asset
brought by a tour guide.
There are some aspects of this relationship which could favor either proposition, but on
balance, it is my opinion, that the evidence supports the conclusion that Pflantzer had an
employment relationship with the Respondent and was not an independent contractor.
B. The discharge
At some point during his employment, Pflantzer started communicating to other
employees of the Company about the idea of getting a union. This was somewhat generalized
and neither he, nor anyone else, actually took the step of contacting a union. Nevertheless, the
Company’s management was aware of this and they claim that this talk started in or around
November 2011. Pflantzer’s recollection is that he talked to about 6 or 7 other employees
regarding unionization in or around December 2011or January 2012. In describing complaints
that some of the drivers had about Pflantzer, White testified that some told him that Pflantzer
was bothering them about getting a union.
The month of December is generally a very busy month as there are many tourists in the
City at that time. However, the evidence shows that after January 1, the Company’s business
typically declines rather drastically and that it runs substantially fewer tours. According to White,
business begins to pick up in late February and returns to a normal level in or around March.
He also testified that in February, he generally starts to reach out to drivers and tour guides who
haven’t worked for a while and to start interviewing new prospective people to do these jobs.
In January 2012, the Company’s schedule of tours dropped and Pflantzer and several
other tour guides were simply not scheduled to work. As the Complaint alleges that Pflantzer
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was not discharged until February 11, 2012, it is conceded by the General Counsel that the
failure to schedule him for work during all of January and half of February was not unlawful.
On February 11, 2012, Pflantzer sent an e-mail to employees of another company called
City Sights from which he had resigned before starting to work at New York Party Shuttle. This
e-mail was not sent to any employees of the Respondent.
On the same date, he posted a message on a face book site called NYC Tour Guides,
which according to Pflantzer, is a closed site, accessible only to New York City tour guides who
have been invited to join this site. He testified that he did not know if any employees of the
Respondent were members of or had access to this web site and there was no other evidence
to show if this was the case.
The e-mail stated in pertinent part:
As you probably know, I am no longer at CitySights. I resigned, said goodbye and went
over to OnBoard Tours in October, thinking the grass and tips would be greener. Well as
often the case, I found it to be untrue.
Believe it or not CitySights is a worker’s paradise compared to OnBoard! At OnBoard
you will receive no health insurance, sick days, vacation days or one single benefit. You
will ride around on unsafe buses, without the benefit of a PA system, or sometimes even
a seat.
There is no union to protect you; you are subject to arbitrary disciplinary actions and out-
right dismissal without recourse. If the company were to be sold, which is what I believe
will happen there is no successor clause to protect your jobs.
And perhaps most egregious of all of the flaws, PAYCHECKS BOUNCE, yes that’s
right, they bounce.
Needless to say, I started to agitate for a union. Guess what happened, I stopped being
called for work. I disappeared off the work sheet, not fired outright, but in effect kicked to
the curb.
My hat is off to USWU 1212 for the excellent work they have done preserving your jobs.
As you all well know, we have a right to organize in this country, a right protected by the
US Government.
I am currently at the NLRB bringing charges against this dysfunctional company.
So before you jump ship, talk to me, I’ll be glad to fill you in on all the gory details.
The face book posting, that incorporates much of the previously described e-mail, states
as follows:
I was recently placed on the Do Not Call List at OnBoard Tours. Prior to that I worked at
CitySights, we have all heard the horror stories about CS and for the most part they are
true.
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But believe it or not, CitySights is a worker’s paradise compared to OnBoard! At
OnBoard you will receive no health insurance, sick days, vacation days or one single
benefit. You will ride around on unsafe buses, without the benefit of a PA system, or
sometimes even a seat.
There is no union to protect you; you are subject to arbitrary disciplinary actions and out-
right dismissal without recourse. If the company were to be sold, which is what I believe
will happen there is no successor clause to protect your jobs.
And perhaps most egregious of all of the flaws, PAYCHECKS BOUNCE, yes that’s
right, they bounce.
Needless to say, I started to agitate for a union. Guess what happened, I stopped being
called for work. I disappeared off the work sheet, not fired outright, but in effect kicked to
the curb.
My hat is off to USWU 1212 for the excellent work they have done preserving your jobs.
As you all well know, we have a right to organize in this country, a right protected by the
US Government.
I am currently at the NLRB bringing charges against this dysfunctional company.
Do not under any circumstances seek employment at this company, they should be
boycotted by all.
In a response to the unfair labor practice charge Mr. Schmidt, gave a statement to the
Regional Office in which he stated:
Mr. Pflantzer had to be redirected in 2011 on a number of occasions for insubordination,
unprofessional behavior, and for other minor infractions. On a number of occasions, he
was unable to maintain a professional demeanor with the Company’s drivers, which is
critical for a tour to be successful. 3 No disciplinary actions were taken in regard to these
issues because they had not risen to that level. As of February 10, 2012, despite the
above issues, Mr. Pflantzer sent a very unprofessional written communication to a
number of parties containing false and defamatory statements about the Company in an
apparent effort to harm the Company. As a result, he is no longer eligible to work for the
Company. However, this decision was based on his prior record with the Company and
on the unprofessional behavior he exhibited in sending negative communications to third
parties who do not work for the Company on February 11, 2012. It was in no way related
to any protected activity.
Moreover, at the hearing, the Respondent reiterated its position that the decision made
in February not to utilize Pflantzer anymore would not have been made but for the February
2012 communications made by him.

3 As noted above, White testified that some of the drivers complained to him that Pflantzer was
bothering them about organizing a union.
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Analysis
In my opinion, Pflantzer’s February 10 e-mail, (and his follow up face book entry),
constitute communications that are protected by Section 7 of the Act. In those communications,
Pflantzer stated that he had made some efforts to get a union; that the employees of the
Company needed a union; and that the law protected employees in their right to organize a
union. This is, in effect, union related activity. C.S. Telecom, 336 NLRB 1193, fn. 3(2001) and
Acme Bus Corp., 320 NLRB 458, 479 (1995). 4
The evidence shows to my satisfaction that the Company, based on the February 10
communications, believed that Pflantzer, if he resumed working in 2012, would make efforts to
convince the other employees to unionize. Thus, while asserting as a defense that other
employees had complained about being bothered by Pflantzer, White described this as meaning
that these employees had been talked to by Pflantzer about unionization. I therefore conclude
that the reason that the Company decided to not utilize Pflantzer as a tour guide after February
2012, was because it believed that if he returned to work, he would engage in union activity. As
such, it is my opinion that this would violate Section 8(a) (1) and (3) of the Act. Approved
Electric Corp. 356 NLRB No. 45 (2010).
The Respondent asserts that Pflantzer’s February 10 communications are libelous and
are therefore not protected by the Act. I do not agree.
Pflantzer’s communications were indeed rather harsh about the Company as to its
dealings with employees. But that does not make them libelous. In fact, virtually all of the
accusations made by Pflantzer were true and therefore cannot be deemed to be libel. It was
admitted that there were occasions when the checks issued to employees were not covered by
sufficient funds. It was also admitted that the Company had received a number of safety
violations. The statements regarding the employee benefits were substantially correct and even
if slightly off, would not constitute the type of statements that would lose the protection of the act
either under Atlantic Steel Co., 245 NLRB 814 (1979) or NLRB v. Electrical Workers Local 1229
(Jefferson Standard), 346 U.S. 464 (1953). (The latter case holding that disparaging statements
about working conditions are protected but that statements that disparage the employer or its
products may not be protected). See also Montauk Bus Company, 324 NLRB 1128, 1138
(1997) and Darphin Beute France, 326 NLRB 1153, 1156 (1998).
I also reject any contention that Pflantzer’s discharge was warranted or motivated by the
fact that he operated a competing company. This fact had been known to the Respondent for
some time and was not asserted to either Pflantzer or the Board’s regional office as a reason for
his termination. Indeed, the testimony by Respondent’s witness was that had it not been for his
February communications, Pflantzer would have been retained.
For all of the foregoing reasons, I conclude that the Respondent discharged Pflantzer
because of his union related activity and/or the Respondent’s belief that he would have engaged
in union activity if was re-employed. Pursuant to Wright Line, 251 NLRB 1083, (1980), the

4 In Acme Bus Corp., the Board held that even though an employee may be acting alone, a worker
attempting to form, join, or assist a union is nevertheless protected by Section 7 of the Act, and an
employee’s action in publicizing her labor dispute is within the scope of activities protected by that
Section. Carpenters Local 925, 279 NLRB 1051, 1055 fn. 40 (1986); Cincinnati Suburban Press, 289
NLRB 966, 967 (1988).
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Respondent has not met its burden of showing that it would have discharged Pflantzer for
reasons other than his union activity.
Conclusions of Law
1. By discharging Fred Pflantzer because of his union activities, the Respondent violated
Section 8(a) (1) and (3) of the Act.
2. The unfair labor practices committed by the Respondent affect commerce within the
meaning of Section 2(6) and (7) of the Act.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent having discriminatorily discharged an employee, it must offer him
reinstatement and make him whole for any loss of earnings and other benefits suffered as a
result of the discrimination against him. Backpay shall be computed in accordance with F.W.
Woolworth Co., 90 NLRB (1950), with interest at the rate prescribed in New Horizons for the
Retarded, 283 NLRB 1187 (1987), compounded daily as prescribed in Kentucky River Medical
Center, 356 NLRB No. 8 (2010), enf. denied on other grounds sub. nom., Jackson Hospital
Corp. v. NLRB, 647 F.3d 1137 (D.C. Cir. 2011).
On these findings of fact and conclusions of law and on the entire record, I issue the
following conclusions and recommended 5
ORDER
The Respondent, New York Party Shuttle, LLC, its officers, agents and assigns, shall
1. Cease and desist from
(a) Discharging employees because of their activities on behalf of or support for union.
(b) In any like or related manner interfering with, restraining or coercing employees in the
rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Fred Pflantzer full reinstatement to
his former job, or if that job no longer exist, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privileges previously enjoyed.

5 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed waived for all purposes.
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(b) Make Fred Pflantzer whole for any loss of earnings and other benefits suffered as a
result of the discrimination against him, in the manner set forth in the Remedy section of this
Decision
(c) Within 14 days from the date of this Order, remove from its files any reference to the
unlawful actions against Fred Pflantzer and within three days thereafter, notify him in writing,
that this has been done and that the discharge will not be used against him in any way.
(d) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the
Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay due under the terms of this
Order.
(e) Within 14 days after service by the Region, post at its New York facility, copies of the
attached notice marked “Appendix” 6 Copies of the notice, on forms provided by the Regional
Director for Region 2, after being signed by the Respondent’s authorized representative, shall
be posted by the Respondent and maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are customarily posted. In addition to physical
posting of paper notices, notices shall be distributed electronically, such as by email, posting on
an intranet or an internet site, and/or other electronic means, if the Respondent customarily
communicates with its employees by such means. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these proceedings, the Respondent has gone
out of business or closed the facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to all current employees and former
employees employed by the Respondent at any time since February 10, 2012.
(f) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
Dated, Washington, D.C. September 19, 2012
_____________________
Raymond P. Green
Administrative Law Judge

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 National labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
JD(NY)–29–12
Appendix
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated the National Labor Relations Act and has
ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected concerted activities.
WE WILL NOT discharge employees because of their union activity or to discourage employees from engaging
in union or protected concerted activity.
WE WILL NOT in any like or related manner interfere with, restrain or coerce employees in the rights
guaranteed to them by Section 7 of the Act.
WE WILL make whole Fred Pflantzer for the loss of earnings he suffered as a result of the discrimination
against him.
WE WILL reinstate Fred Pflantzer to his former job or, if that job no longer exist, to a substantially equivalent
position, without prejudice to his seniority or any other rights or privileges previously enjoyed, and make them
whole for any loss of earnings and other benefits suffered as a result of the discrimination against him.
WE WILL remove from our files any reference to the unlawful discharge of Fred Pflantzer notify him, in writing,
that this has been done and that these actions will not be used against him in any way.
New York Party Shuttle, LLC
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under the
Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s Regional
Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
26 Federal Plaza, Federal Building, Room 3614
New York, New York 10278-0104
Hours: 8:45 a.m. to 5:15 p.m.
212-264-0300.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 212-264-0346.