Jay Dee Transportation, Inc.

I)t('ISI()NS ()F NAIONAI_ LABOR REI.A(IONS BOARD Jay Dee Transportation, Inc. and Tom For Transpor- tation Corp. and IAcal 854, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 29 C'A 6436 July 23, 1979 DECISION AND ORDER BY CIAIRMAN FANNING ANI) MEMBERS JENKINS ANI) TRU ISI)AIL. On May 15, 1979, Administrative aw Judge Mar- vin Roth issued the attached Decision in this proceed- ing. Thereafter, Respondent filed exceptions and a supporting brief. Pursuant to the provisions of' Section 3(h) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached [)ecision in light of the exceptions and brief and has decided to affirm the rulings. findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge and hereby or- ders that the Respondent, Jay Dee Transportation, Inc., and Tom For Transportation Corp., Commack. New York, its officers, agents, successors, and assigns, shall take the action set forth in the said recommend- ed Order. I In sentences 10. 11, and 13 in sec. Il,A. of his Decision the Administra- tive Law Judge inadvertently referred to the testimony of James DeLuca as being that of Tom Terranova. We hereby correct these errors. DECISION STATEMENT OF TIlE CASE MARVIN ROTH, Administrative Law Judge: This case was heard in Brooklyn, New York, on December 14, 1978. The charge was filed on May 30,' by Local 854, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (herein the Union). The complaint, which issued on July 14, alleges that Jay Dee Transporta- tion Inc. and Tom For Transportation Corporation (herein respectively Jay Dee and Tom For and collectively the Company or Respondent), violated Section 8(a)(1) of the National Labor Relations Act, as amended. The gravamen t All dates herein are in 1978 unless otherwise indicated. of' the complaint is that the ('ompavy, by its alleged super- visor and agent, Lead Bus Driver Rose Marousek. warned and directed its employees from becoming or remaining members of the Union or giving assistance or support to the Union; threatened its employees with plant closure or other reprisals if' thev became or remained members of the Utnion or gave it assistance or support: and in the presence of employees threatened officials and representatives of' the Union with bodily harm. The (omnpany's answer denies the commission of the alleged unfair labor practices. All parties were afforded full opportunity to participate, to present rel- evant evidence, to examine and cross-examine witnesses, to argue orally. and to ile briefs. Only the General Counsel submitted a brief.' Upon the entire record in this case and from my obsera- tion of the demeanor of the witnesses, and having consid- ered the arguments of the counsel and the brief submitted by the General Counsel, I make the following: FINI)I(s ()I I A( I. Itt BStINESS () Ilie RISPOI()ENI Jay Dee and Tom For are New York corporations which merged their respective businesses in 1961. The principals are James D)eLuca, who is president of. Jay Dee and vice president of Tom For, and Charles Tomeo, who is president of Tom For and secretary of Jay Dee. It is undisputed that at all times material Jay Dee and I'om For. i.e.. the Com- pany, were and are a single integrated enterprise engaged in the business of providing bus transportation services and related services, with a common labor policy, and together constitute a single employer within the meaning of the Act. The Company maintains its principal office and place of business in Roosevelt, New York, and maintains terminals, known as yards, in Roosevelt, Hicksville, Amityville, Hol- brook, and ('ommack, New York. The alleged unfair labor practices took place at the Commack yard. In the operation of its business, the Company annually receives gross rev- enues in excess of $250,(00 and annually purchases supplies valued in excess of $50,(00 directly from firms located out- side the State of New York. I find, as the Company admits. that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Notwithstanding its admission that it is an employer within the meaning of the Act, and therefore subject to the Board's jurisdiction, the Company argued at the hearing that the Board should decline to assert its jurisdiction to remedy unfair labor practices in this case because most of the Company's operation consists of transporting public and parochial school children pursuant to the Company's contracts with various school districts. The Company relied on the authority of Roesch Lines, Inc., 224 NL.RB 203 (1976). in which the Board (Members Fanning and Jenkins dissenting) applied the so-called "intimate connection" standard. Under this test, the Board may decline to assert its jurisdiction over a private employer who performs ser- vices for a governmental entity, which services are tradi- tionally performed by such entities themselves. The lead 2 The Company requested leave to file a brief. but did not submit one. 243 NLRB No. 114 638 JAY DEE TRANSPORTATION. INC., ET AL.. case authority for the intimate connection standard was Ru- ral Fire Protection Comnpanv, 216 NLRB 584 (1975). How- ever, in National ransportation Service, Inc., 240 NLRB 565 (1979)., which issued subsequent to the hearing and time for submission of briefs in this case, the Board aban- doned the intimate connection standard. The Board held, in essence, that it would assert jurisdiction over an employer with close ties to an exempt entity if: ( I ) the employer itself meets the definition of "employer" in Section 2(2) of the Act; and (2) the employer has sufficient control over the employment conditions of its employees to enable it to bar- gain with a labor organization as their representative. National Transportation for all practical purposes under- cuts any possible basis for declining to assert jurisdiction in this case. As indicated, the Company admits that it is an employer within the meaning of the Act. The school dis- tricts with which the Company does business exercise no discernible control over the Company's employees with re- gard to hiring, firing. supervision, discipline, work assign- ments, or the conferring of benefits. Indeed the Company does not contend otherwise. Supervision of drivers and other employees is exercised exclusively through the Com- pany's own supervisory personnel. The Company fixes wage scales and benefit programs for its employees which are uniform, notwithstanding that the Company performs services for a multiplicity of school districts as well as for private schools, at varying rates of compensation. There- fore, the evidence indicates that the Company has sufficient control over the employn.ent conditions of its employees to enable it to bargain with a union as their representative. and it is appropriate to assert the Board'sjurisdiction in this case. National Transportation, supra,' Kal Leasing, Inc., 240 NLRB 892 (1979). Even if the intimate connection standard were still in effect, it would not preclude exercise of the Board's jurisdiction in this case. The Company's contracts with school districts provide almost entirely for the trans- portation of handicapped children. In United Services for the Handicapped, 239 NLRB 976 (1978). the Board held that such services are not those that a city, county, or state would normally be required to provide, and therefore that the intimate connection standard would not be applicable. 11. THE .ABOR ORGANIZAIO)N IN V()I[VD The Union is a labor organization within the meaning of Section 2(5) of the Act. III. TE AI.I.E(iI) iUNFAIR ABOR PRAt II('S A. The Status of Rose Marousek Tom Terranova, whose title is dispatcher, and who nor- mally works at the Amityville yard, is nominally in charge of the Company's three yards in Suffolk County-Amityville. Holbrook, and Commack. The Commack complement con- sists of about 55 bus drivers, 21 matrons (who care for the children on the buses), two mechanics, and Lead Driver Rose Marousek, who is the highest ranking individual at Commack. In addition to Terranova, there is a lead driver at Amityville (Eileen Ehrhardt), and another at Holbrook. There are about 35 drivers based at Holbrook and some 100 drivers based at Amityville, including spare drivers who may as needed be transferred to runs in and out of the other yards. It may also be fairly inferred that the Amityville and Holbrook yards have matrons and mechanics in at least the same proportion to drivers as at Commack. Terranova. as an adverse witness for the General Counsel, testified that he visits the Commack terminal about once or twice a month. The Company denies that its lead drivers, and specitically, Rose Marousek are supervisors within the meaning of the Act. If so, this would mean that the Company has only one first-line supervisor for some 250 employees at three yards, and that some 80 employees at Commack normally func- tion without any immediate and responsible supervision. The facts and figures belie the Company's position. Even Tom Terranova, who as a company witness eidenced a determination to "stonewall it" by denying that Marousek exercised even the most rudimentary discretion in dealing with the Commack employees, was forced to admit in his testimony that Marousek did in fact exercise functions of a supervisory nature. Terranova testified that when a bus breaks down or the driver has a problem with a child or children which requires assistance (the latter being a ery real problem as most of the passengers are children with learning or other difficulties), Marousek may on her own initiative dispatch someone to help. Alternatively, Marou- sek may instruct the driver or matron as to how to handle the situation. I do not credit Terranova's attempt to back away from his admission by asserting that Marousek could only dispatch help for a breakdown. Terranova also admit- ted that his lead drivers, including Marousek. prepare disci- plinary notices to employees for his signature. Jay Dee President DeLuca, in his testimony admitted that Marou- sek reports problems to company dispatchers and "possi- bly" makes recommendations (Terranova is the only dis- patcher in Suffolk County. the other two being in charge in Roosevelt and Hicksville. respectively). I find incredible. Terranova's assertion that he learns of employee infractions of company rules or employee traffic violations directly from the drivers themselves, or on his own or from some unknown source- anyone, but Marou- sek. As Marousek is the only person who is normally in regular two-way radio contact with the Commack drivers, it is evident that she is the normal and usual source of such information. I also find incredible, Terranova's assertion that he personally, without any assistance from his three lead drivers. reviews a total of nearly 1.000 daily logs, which are turned in by the drivers to the lead driver each week. in order to determine whether drivers are taking or claiming too much time on their runs. I credit the testimony of driver Marie Benedetto and former driver Josephine Caputo that Marousek reviews the logs herself, and the tes- timony of Caputo that Marousek will warn employees who she believes are taking too much time. I further credit the testimony of Caputo that Marousek will hire drivers with- out prior approval from Terranova. It is undisputed that Marousck is rarely needed as a substitute driver. If she does not exercise supervisory authority. then it is difficult to see what function she does perform. other than to serne as a bottleneck between the employees and responsible supcri- sion. It is unlikel\ that the drivers would be in constant 639 DIC)FCISIONS OF NATIONAl. LABOR RA'l IONS BOARD radio communication with Marousek ift' there was little or nothing she could do about their problems and requests except to tell them to call Terranova. If such were the case, the drivers could save much time and trouble by contacting Terranova directly, and the Company could dispense with Marousek's superfluous services. Furthermore, as will be discussed, the statements attributed to Marousek. which constitute the alleged unfair labor practices in this case, and which are uncontroverted. coupled with the employees' re- sponses to those statements, evidence that Marousek did in fact responsibly direct the work of the Commack employ- ees, and exercise close day-to-day control over the opera- tion at Commack.) I find that Marousek had authority to, and did, in the Company's interest, responsibly direct em- ployees in their work, and hire, assign and discipline em- ployees, and effectively recommend such action, including discharge. Therefore, Marousek was and is an agent of the Company, acting on its behalf, and a supervisor within the meaning of Section 2(1 1) of the Act. B. The A legedl Unlafid C(onduc! On May 17 the Union commenced an organizational campaign with a meeting at which about six company em- ployees were present. On the morning of' Friday, May 19, union organizer Frank Galgano, accompanied by two vol- unteer organizers who were employees of another bus com- pany, went to the Company's Commack yard to distribute union literature and solicit support among the employees. The three organizers stood outside the gate, on public prop- erty, and distributed literature and talked to the employees as they arrived at the yard to begin their runs. Thereafter the organizers heard a commotion with yelling, and Rose Marousek came up to the gate. Many of the drivers were nearby and could hear what she said. The testimony of Galgano and employee organizer Frances McFall concern- ing her remarks is uncontroverted. Marousek yelled at the organizers: "We don't want you union people here because you're nothing but trouble. Get the hell out of here and stay away from my workers." Marousek added that if a union came into the plant they would have to close up. Before returning, Marousek told the organizers "and stay away stay the hell away from here before you get hit by a bus." Sometime later, as buses entered the yard, organizer McFall heard a woman's voice on a bus two-way radio telling the drivers not to stop at the gate because there were people from a union there, to pull right into the yard. and not to speak to them. Although many drivers had been re- ceptive to the organizers when they first arrived, the drivers I The Company called Marousek as a witness, but only or a limited pur- pose which I ruled to be immaterial to the issue of her status. I he Company offered to prove that some years earlier Marousek voted without challenge in a Board election. and that herjob had not changed since that time I rejected the offer. Marousek's status was never litigated or adjudicated in either a representation or an unfair labor practice proceeding. herefore the prol- erred matter, even if proven, would not preclude a finding on the e idence adduced in this case that Marousek was a supervisor. NL. RB v F.loit Wilianms, ('o, Inc. 345 F.2d 460, 463 (7th ('ir. 1965) Southern Pailn & Waerprooing (,a. Inc., 230 NI.RB 429. 436 (1977)1 Duo-Bed (i,,rporafitn. 172 NI.RB 1581, t. 1 (11968). now tended to roll up their windows or throw the literature back to the organizers. The inference is warranted, and I so find, that the voice on the two-way radio was that of Rose Marousek. Marou- sek was the only person, and specifically the only woman, who was in regular radio contact with the drivers, and the instruction was consistent with her earlier remarks to the organizers. As indicated. the Company presented Marousek as a witness, but she did not deny making any of the state- ments attributed to her, including the instructions over the two-way radio. T'herefore, the logical inference may be drawn. As the organizers were stationed on public property. the Company had no legitimate reason to prohibit contact between its employees and the organizers. The organizers were stationed off the driveway. There is no evidence that they were standing in an unsafe location. Therelfore the in- lerence is warranted and I so find. that Marousek was not concerned with their safety, but was threatening them with violence. I find that the Company, by Marousek violated Section 8(a)(I) of the Act by warning and instructing its employees not to communicate with the union organizers;4 by threatening them with plant closure it' they designated or selected a union as their bargaining representative; and in the presence of employees, by threatening the organizers with bodily harm.' As two of the organizers were also em- ployees, the Company's unlawful conduct interfered with their statutory right to communicate with other employees as well as with the statutory rights of the Company's own employees. CO)N(CI SIONS O{) LAWA I. The Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing employ- ees in the exercise of the rights guaranteed in Section 7 of the Act, the Company has engaged, and is engaging in un- fair labor practices within the meaning of' Section 8(a)( ) of the Act. 4. The aoresaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act, and it would effectuate the purposes of the Act for the Board to assert itsjurisdiction in this case. I [1 RI hNi))Y Having found that the Company has committed viola- tions of Section 8(a)( I) of the Act I shall recommend that it be required to cease and desist therefrom and to post ap- propriate notices. In view of the serious nature of the unfair labor practices found herein, including a threat of violence and a threat of plant closure, I am recommending that the Company be ordered to cease and desist from infringing in 4 See Square Binding and Rulin (.. In(., 146 NL. R Bt 206. 213 (1964)1 see also Giant Fd Markrts. Inc. 241 NLRB 727 1979). 'See lfarlent Industrie (rp,,raion. t al. 166 NI.RB 703. 740 (1967). entd. suh nonm. Decalumri/le Sportner ('o I. in al el. v N I. R B. 406 .2d 886 6th C(r. 1969). 640 JAY DEE TRANSPORTATION. INC.. ET AL. any manner upon the rights guaranteed in Section 7 of the Act.6 In view of the integrated nature of the ('ompany's operations. including frequent transfers of personnel from one yard to another, and the fact that the Company's un- lawful conduct interfered with an organizational campaign which extended to all of the Company's yards. I shall direct that an appropriate notice be posted at the Company's main office and at each of its yards. Wonder Markerts,r Inc.. 236 NLRB 787, 791 (1978). Upon the foregoing findings of fact and conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER7 The Respondent. Jay Dee Transportation, Inc., and Tom For Transportation Corporation, Commack. New York. its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Warning or directing employees not to talk to union organizers. (b) Threatening union organizers with violence. (c) Threatening employees with plant closure if' they des- ignate or select a union as their bargaining representative. (d) In any other manner interfering with. restraining, or coercing employees in the exercise of their rights to orga- nize: to form, join, or assist labor organizations to bargain collectively through representatives of their own choosing: to engage in concerted activities for the purpose of collec- tive bargaining or other mutual aid or protection: or to refrain from any and all such activities. 2. Take the following affirmative action which is found necessary to effectuate the policies of the Act: (a) Post at its offices in Roosevelt, New York. and at each of its yards, including its yard in Commack. New York, copies of the attached notice marked "Appendix.' I See N.L.R B. . Gissel Packing Co, Inc., 395 U.S. 575. 589. 615 (1969}: Muhi-Naional Ftd Service. Division of Schwan' Sales Enterprise. Inc. 238 NLRB 1031 (1978). 7 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Ltabor Relations Board, the findings. conclusions, and recommended Order herein shall, as provided n Sec. 102.48 of the Rules and Regulations, he adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall he deemed waived for all purposes. I In the event that 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 "Posled Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." Copies of said notice, on forms provided by the Regional Director for Region 29. after being duly signed by Respon- dent's authorized representative, shall be posted by Respon- dent immediately upon receipt thereof. and be maintained by it for 60 consecutive days thereafter. in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Re- spondent to insure that said notices are not altered. defaced, or covered by any other material. (b) Notify the Regional Director for Region 29. in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. APPN 1)1 X No i( u To Espil oY.ElIs PosIt) BY ORDER OF 111t NAII)ONAI LABOR RI ATIONS BOARI) An Agency of the United States Government After a hearing at which all parties had an opportunity to present evidence, the National Labor Relations Board has found that we violated the National Labor Relations Act. as amended, and has ordered us to post this notice and to carry out its provisions. VWL Wll. NOt warn or direct employees not to talk to union organizers. Wi wll.i. NIt threaten union organizers with vio- lence. Wti i II ) so threaten employees with plant closure if they designate or select a union as their bargaining representative. Wt Wi II Ntl in any other manner interfere with. restrain, or coerce employees in the exercise of their rights to organize. to orm, join, or assist labor organi- zations, including Local 854. International Brother- hood of leamsters. (hauffeurs. Warehousemen and Helpers of America. to bargain collectively through representatives of their own choosing. to engage in concerted activities for the purpose of collective bar- gaining or other mutual aid or protection, or to refrain from any and all such activities. All our employees are free to become, remain or refuse to become or remain. members of said LOCAL 854 or any other labor organization. JAY DI-l TRANSP()RIAII()N. IN(. AND ToM FOR TRANSI')R A I I()N CORPORA I I()N 641