Five Star Transportation, Inc.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 349 NLRB No. 8 42 Five Star Transportation, Inc. and Transportation Division, United Food and Commercial Workers Union, Local 1459, AFL–CIO. Case 1–CA– 41158 January 22, 2007 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND SCHAUMBER On June 23, 2004, Administrative Law Judge Arthur J. Amchan issued the attached decision. The Respondent filed exceptions and a supporting brief. The General Counsel filed partial exceptions and a brief in support of his partial exceptions and in partial support of the judge’s decision. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions, partial exceptions, and briefs and has decided to affirm the judge’s rulings, findings,1 and conclusions only to the extent consistent with this Decision and Order.2 I. INTRODUCTION The central issue presented in this case is whether the Respondent, which entered into a new contract to pro- vide school bus transportation services to the Belcher- town School District, may lawfully refuse to hire 11 bus drivers who worked for First Student, Inc., the previous 1 The Respondent has 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 Respondent excepts to the judge’s finding that it violated Sec. 8(a)(1) of the Act when its president, Theresa Lecrenski, told discrimi- natees Terri Nadle, Caron Rose, and Pauline Taylor that they were not being hired because of their letters to the Belchertown school commit- tee. While the judge did not include a factual description of this inci- dent in his decision, the uncontested testimony of Lecrenski fully sup- ports the judge’s finding of an 8(a)(1) violation here. The Respondent does not dispute Lecrenski’s testimony, but it instead argues that no violation occurred because Nadle, Rose, and Taylor “were [not] em- ployed by the Respondent, and had not even submitted applications for employment to, or otherwise indicated in any way a desire to be em- ployed by, the Respondent, at the time they sent their E-mails/letters” to the school committee. It is clear from the record, however, that all three individuals involved had applied for, and had unlawfully been denied, employment with the Respondent. Accordingly, discriminatees Nadle, Rose, and Taylor are to be regarded as the Respondent’s em- ployees. Thus, we find no merit in the Respondent’s exception and affirm the 8(a)(1) violation found by the judge. 2 We shall modify the judge’s recommended Order and shall substi- tute a new notice to conform to the Board’s standard remedial lan- guage. See, e.g., Harco Trucking, LLC, 344 NLRB 478 (2005). contract provider of these services, because those drivers had sent individual letters to the Belchertown school committee in an effort to convince the school committee to award the new school bus contract to First Student, Inc. In analyzing the conduct of the drivers at issue, we find that the letters at issue fall into the following three categories: (1) letters that failed to raise common em- ployment-related concerns of the drivers as a group; (2) letters that essentially disparaged the Respondent’s busi- ness; and (3) letters that primarily raised the drivers’ common employment-related concerns. As more fully explained below, we find that only those six drivers whose letters fall within the last category engaged in protected concerted activity. Thus, we find that the Re- spondent violated the Act when it refused to hire those six employees—Steve Kahn, Suzanne LeClair, Terri Nadle, Caron Rose, Pauline Taylor, and Deborah Wenzel—based on their letters. In the absence of a find- ing of protected concerted activity for the other letters, we shall dismiss the refusal-to-hire allegations pertaining to the remaining five drivers. II. FACTUAL BACKGROUND The relevant facts, as set forth more fully in the judge’s decision, are as follows. The Belchertown, Mas- sachusetts School District has a history of contracting with private companies to provide school bus transporta- tion services. In 2000, an entity currently known as First Student, Inc. was awarded the 2000–2003 bus services contract. At the time that First Student won the contract, the United Food and Commercial Workers Union, Local 1459 (the Union) had been representing all the regular bus drivers, spare drivers, utility drivers, and trainers employed by the company operating under the expiring contract. After First Student took over the operations, it voluntarily recognized the Union as the bargaining repre- sentative for the drivers and signed a collective- bargaining agreement with the Union. On or about January 16, 2003,3 the Respondent, Five Star Transportation, Inc., and the Union learned that the School District had awarded the 2003–2006 Belchertown school bus services contract to the Respondent. On January 21, Daniel Clifford, a union vice president and business agent for the First Student drivers, sent a letter to the associate superintendent of the Belchertown schools. In his letter, Clifford questioned how the Re- spondent’s bid for the Belchertown contract, which was about $300,000 lower than First Student’s current con- tract, would be able to cover “the current wage and bene- fit package, maintain operation costs (fuel, equipment, etc.) and provide safe and effective service.” Clifford 3 All dates are 2003, unless otherwise indicated. FIVE STAR TRANSPORTATION, INC. 43 further commented: “In order to create a level playing field and a more equitable bid process, we asked previ- ously that any prospective bidder factor into their bid model the wages and benefits of the current labor agree- ment [between the Union and First Student].” Also on January 21, Clifford faxed a letter to Theresa Lecrenski, the president of the Respondent. Clifford sought to secure a “guarantee” that the Respondent would voluntarily recognize the Union as the drivers’ bargaining representative, allow the union members to continue in their jobs with full seniority after the 2003– 2006 bus services contract began, and meet with the Un- ion to negotiate a successor collective-bargaining agree- ment encompassing the Belchertown drivers. Clifford’s letter also stated: “If we do not hear back from you promptly on these issues, we will infer that you do not intend to cooperate in these reasonable demands on be- half of our members and if you are awarded the contract, we will exercise all of our legal options as aggressively as a labor union could be expected to protect the hard- won benefits of its members.” Lecrenski did not respond to Clifford’s letter. On January 31, Clifford organized a meeting of several Belchertown drivers. At this meeting, two drivers who had previously worked for the Respondent at other loca- tions spoke of alleged problems, including alleged prob- lems with timely and adequate bus servicing and mainte- nance, that had arisen during their employment with the Respondent. In addition, Clifford distributed several unflattering newspaper articles about the Respondent that had appeared in a local newspaper in 1996. The articles described the following incidents: (1) a February 1996 incident in which several of the Respondent’s buses failed to start in extremely cold weather, leaving students stranded at their bus stops; (2) a March 1996 article con- cerning the Respondent’s employment of a convicted sex offender—who did not have a valid school bus driver’s license—as a school bus driver in Amherst, Massachu- setts; and (3) a May 1996 article concerning a driver for Respondent who had consumed alcoholic beverages at lunch and then drove a school bus route in the afternoon.4 During the meeting, Clifford also encouraged the drivers to write to the school committee. Thereafter, approxi- mately 15 drivers of First Student sent letters to the school committee. The award of the Belchertown school bus contract was delayed while the school committee considered the is- sues raised in the First Student drivers’ letters. Ulti- mately, the school committee awarded the contract to the 4 After this last incident, the driver was fired, but it was later re- vealed that the driver had had eight previous driving infractions, includ- ing one for drunken driving and one for driving with a revoked license. Respondent and, in response to the Respondent’s request under the Massachusetts Freedom of Information statute, provided the drivers’ letters to the Respondent. Seventeen Belchertown drivers who were members of the First Student bargaining unit applied for bus driver positions with the Respondent; 11 of those drivers had sent letters to the school committee. The Respondent hired only the six drivers who had not sent letters to the school committee. Lecrenski admitted that her decision not to hire the other 11 applicants was based solely on the fact that each had sent a letter to the school commit- tee. III. THE JUDGE’S DECISION The judge found that the First Student drivers who wrote letters to the school committee, with the exception of Candy Ocasio and Charles Kupras, had engaged in protected concerted activity. As a result, the judge found that the Respondent violated Section 8(a)(1) of the Act by refusing to consider for hire and refusing to hire Don- ald Caouette, Patricia Grasso, Steve Kahn, Suzanne Le- Clair, Andrea MacDonald, Terri Nadle, Caron Rose, Pauline Taylor, and Deborah Wenzel. The judge found that, based on the substantive content of their letters, Ocasio and Kupras had not engaged in protected activity, and that, therefore, the Respondent did not violate the Act by refusing to hire or consider for hire those two drivers. Finally, the judge determined that, had the Re- spondent hired the nine discriminatees, a majority of the drivers employed by the Respondent would have been former First Student bargaining unit members. Accord- ingly, the judge found that the Respondent was a succes- sor employer of First Student and, as such, had an obliga- tion to recognize and bargain with the Union as the ex- clusive representative of the Respondent’s drivers. IV. ANALYSIS Did the Drivers Engage in Concerted Activity To begin, we agree with the judge that all of the driv- ers engaged in concerted activity by preparing and sub- mitting individual letters to the school committee. The Board has recognized that “concerted activity” within the meaning of Section 7 of the Act encompasses conduct “engaged in with or on the authority of other employees, and not solely by and on behalf of the employee him- self.” See Salisbury Hotel, Inc., 283 NLRB 685, 685 (1987), citing Meyers Industries (Meyers I), 268 NLRB 493 (1984), remanded sub nom. Prill v. NLRB, 755 F.2d 941 (D.C. Cir. 1985), on remand Meyers Industries (Meyers II), 281 NLRB 882 (1986), enfd. sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987). Here, it is un- disputed that the drivers held a meeting to discuss their group concerns about their employment situation, and DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 44 that, at the meeting, Union Business Agent Clifford urged the drivers to write letters to the school committee. Thus, it follows that the resulting letter-writing campaign constituted concerted activity within the meaning of Sec- tion 7 of the Act. Did the Drivers Engage in Protected Activity The more difficult issue, however, is whether the driv- ers, in sending their individual letters, engaged in activity “for mutual aid or protection” under Section 7 of the Act. In order to resolve this issue, we find it useful to separate the drivers into three groups, based on their individual letters. A. Drivers Whose Letters Failed to Raise Common Em- ployment-Related Concerns The first group consists of drivers Candy Ocasio and Charles Kupras. As noted above, the judge found that Ocasio and Kupras, in sending their individual letters, did not engage in protected activity under the Act. Ana- lyzing the letters of Ocasio and Kupras, the judge found that “[o]ther than some very generalized assertions about the quality of [the] Respondent’s buses, neither made any other reference to the wages and working conditions of the school bus drivers. Moreover, it is unclear from [the] two letters that the writers are concerned with the safety of the drivers, as opposed to the [school children].” We agree with the judge, and find that Ocasio and Ku- pras did not engage in protected activity under the Act. Section 7 of the Act provides employees with the right to engage in concerted activities for the purpose of collec- tive bargaining or “other mutual aid or protection.” It is well established that Section 7 protects employee efforts “to improve terms and conditions of employment or oth- erwise improve their lot as employees through channels outside the immediate employee-employer relationship.” Eastex, Inc. v. NLRB, 437 U.S. 556, 565 (1978). Never- theless, “some concerted activity bears a less immediate relationship to employees’ interests as employees than other such activity,” and that “at some point e relation- ship becomes so attenuated that an activity cannot fairly be deemed to come within the ‘mutual aid or protection’ clause.” Id. at 567–568. In the case of drivers Ocasio and Kupras, we find that the content of their letters was not sufficiently related to the drivers’ terms and conditions of employment to con- stitute protected conduct. In their letters, Ocasio and Ku- pras focused solely on general safety concerns and did not indicate that their concerns were related to the safety of the drivers as opposed to others.5 As the Board re- 5 For instance, Kupras’ letter reads, in pertinent part: cently reiterated, consistent with long standing precedent, merely raising safety or quality of care concerns on be- half of nonemployee third parties is not protected con- duct under the Act. See Waters of Orchard Park, 341 NLRB 642 (2004).6 Further, we are not persuaded that these two letters should be interpreted as raising the driv- ers’ common concerns simply because they were written as part of the drivers’ letter-writing campaign. Instead, we determine whether certain communications are pro- tected by examining the communications themselves. Accordingly, because the concerns expressed in the let- ters of Ocasio and Kupras were limited to a discussion of generalized safety concerns, as opposed to the drivers’ As you know better than I do, there is a serious question rising pertain- ing to the Busing Contract with the Five-Star Transportation Com- pany. The School Board, the parents, and the children of our Town are facing a serious problem in the transportation of our children to and from school. . . . . Five-Star has a long publicized history of problems. The primary issue to consider is safety. Five Star buses are of low standard and main- tained inadequately. Some drivers are poorly trained and of question- able character. There have been reported incidences [sic] of drivers with criminal records. One such driver was allowed to operate while his license was suspended. Five-Star lacks the values of its competi- tors and fails to warrant the responsibility of transporting our children. Ocasio’s letter reads, in pertinent part: I am writing to you today with some concerns, not only as a school bus driver but as a resident of Belchertown and a mother of two chil- dren who attend Belchertown Schools. It’s my understanding that there may be a chance you will be accepting a bid from Five Star Transportation for the new school busing contract to start September 2003. It has come to my attention through research and talking with past employees of Five Star Transportation that this may not be a wise de- cision. The safety of the children in Belchertown are at stake. It has been know in the past that the company has hired not only unlicensed bus drivers, but there has been two incidents of them hiring a con- victed child Molester, and a driver who was driving a school bus with a half dozen children under the influence. They have also been known to be unreliable with buses being unsafe. . . . . Would you feel safe putting your children on these buses knowing what you know? I know I would not and will not be placing my chil- dren on these buses if indeed they will be the school busing transporta- tion company for this town. So I ask of you to think long and hard about this decision as it is not an easy one. On one hand you have to save money for the town and on the other hand you have an obligation to this community not only to provide transportation for the children of Belchertown back and forth to school but to also keep them safe. I do hope the right decision is made. 6 Contrary to our dissenting colleague, we do not find that either Ocasio’s self-identification in her letter as a bus driver or Kupras’ “tout[ing] the professionalism of First Student personnel” in his letter was sufficient to indicate that either driver’s letter raised the issue of the bus drivers’ common concerns. FIVE STAR TRANSPORTATION, INC. 45 common concerns involving their terms and conditions of employment, we find that the judge properly found that the conduct of Ocasio and Kupras was not protected by Section 7 of the Act. Our dissenting colleague contends that Ocasio and Kupras sent their letters as part of a letter-writing cam- paign with the protected intention of preserving the driv- ers’ terms and conditions of employment. Since their aim was common, it follows for the dissent that the con- tent of the letters by Ocasio and Kupras should be “ir- relevant” to the Board’s consideration. We disagree. Preliminarily, as discussed above, we disagree that the intention of Ocasio and Kupras was to preserve terms and conditions of employment. But, assuming arguendo that this was their purpose, it is essential to look at the means that they used to accomplish that purpose. The means here were the letters themselves. More specifi- cally, it was the content of the letters, not the act of send- ing them, that caused the discharges. As the Respon- dent’s president testified (correctly quoted in the dissent), “I had to read the letter first to make sure what it said.” The fact that Ocasio and Kupras identified themselves as predecessor employees and touted their professional- ism does not establish that their interest was in their own terms and conditions of employment. These attributes were part and parcel of their effort to show that the predecessor and its employees could be trusted to trans- port the school’s students. They were not aimed at im- proving terms and conditions of employment under the Respondent. We agree with our colleague that a written communi- cation must be viewed “in its entirety and in context,” in order to determine whether there is a nexus to terms and conditions of employment. See Endicott Interconnect Technologies, 345 NLRB 448 (2005), enf. denied 453 F.3d 532 (D.C. Cir. 2006). However, having said that, the Board in Endicott went on to analyze separately the two communications involved in that case, and found that, in each communication, there was a reference to a layoff, i.e., a term or condition of employment. There is no comparable reference to a term or condition of em- ployment in the letters of Ocasio and Krupas here. Simi- larly, in Allied Aviation, 248 NLRB 229, 231 (1978), the communication at issue was part of an ongoing labor dispute about the safety of employees, i.e., a term or condition of employment. B. Drivers Whose Letters Disparaged the Respondent’s Business The second group of drivers that we consider consists of Donald Caouette, Patty Grasso, and Andrea Mac- Donald. Unlike Ocasio and Kupras, these three drivers wrote letters that expressed concerns for the drivers’ terms and conditions of employment. However, in doing so, the letters criticize and disparage the business reputa- tion of the Respondent in ways that go beyond com- plaints about terms and conditions of employment. The judge found that, based on the content of their letters, Caouette, Grasso, and MacDonald had engaged in pro- tected activity under Section 7 of the Act. We disagree. We find that the letters of Caouette, Grasso, and Mac- Donald constitute disparagement of the Respondent’s business and are unprotected under the Act. As stated above, employees do not lose their Section 7 protection simply because they seek “to improve terms and conditions of employment or otherwise improve their lot as employees through channels outside the im- mediate employee-employer relationship.” Eastex, 437 U.S. at 565.7 Not all employee conduct is protected un- der the Act however: “[E]mployee conduct involving a disparagement of an employer’s product, rather than pub- licizing a labor dispute, is not protected.” NLRB v. Elec- trical Workers, Local 1229, 346 U.S. 464 (1953); accord: Emarco, Inc., 284 NLRB 832, 833 (1987) (“[E]mployees may engage in communications with third parties in cir- cumstances where the communication is related to an ongoing labor dispute and when the communication is not so disloyal, reckless, or maliciously untrue to lose the Act’s protection.”); see also Arlington Electric, Inc., 332 NLRB 845, 846 (2000) (employee’s distribution of flyer urging boycott of hospital found to be protected where the flyer’s content was related to an ongoing labor dis- pute). In determining whether employee conduct falls outside the realm of conduct protected by Section 7, we consider whether “the attitude of the employees is flagrantly dis- loyal, wholly incommensurate with any grievances which they might have, and manifested by public dispar- agement of the employer’s product or undermining of its reputation.” Vandeer-Root Co., 237 NLRB 1175, 1177 (1978). A critical further determination is whether the conduct bears “a sufficient relation to [employee] wages, hours, and conditions of employment.” Id.; see also Emarco, Inc., 284 NLRB 832, 834 (1987) (employee’s disparaging remarks were protected when they were “made in the context of and were expressly linked to the labor dispute”); Community Hospital of Roanoke, 220 NLRB 217, 223 (1975), enfd 538 F.2d 607 (4th Cir. 1976) (employee’s comments on television program 7 We note that the judge’s reliance on Montauk Bus Co., 324 NLRB 1128 (1997), is misplaced, as that case does not present the question of whether an employee’s conduct is protected by Sec. 7, but rather whether a strike would be rendered unprotected because the union had a conflict of interest. Accordingly, Montauk applied a legal analysis different from the rationale appropriate here. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 46 were protected where they were specifically related to employees’ efforts to improve wages and working condi- tions and where there was no deliberate intent to impugn employer). The letters of Donald Caouette, Patty Grasso, and An- drea MacDonald, in addition to raising the drivers’ common concerns, explicitly referred to the 1996 inci- dents that were reported in the newspaper articles dis- tributed by Clifford at the drivers’ January 31 meeting. In the context of those incidents, the letters criticized the Respondent’s operations and, further, used inflammatory language to describe the Respondent. For example, MacDonald characterized the Respondent as a “sub- standard company” that was “so reckless that they have employed alcohol abusers, drug offenders, child moles- ters, and persons that have had their license suspended.” Similarly, Grasso voiced her concern over “the incompe- tence and negligence” of the Respondent’s management, and Caouette criticized the Respondent for being “care- less” in its hiring and for its poor reputation. We find that the letters of Caouette, Grasso, and Mac- Donald fall outside the realm of protected activity within the meaning of Section 7.8 Their letters disparaged the Respondent’s business by bringing to the school commit- tee’s attention incidents that had occurred approximately 7 years prior to the instant labor dispute and that, signifi- cantly, had no relation to the drivers’ concern that the Respondent would not maintain the terms and conditions of employment that the drivers had negotiated with First Student. Furthermore, these three drivers used inflamma- tory language—again, in the context of incidents not related to the drivers’ group concerns—to describe the Respondent in a manner that suggested that the drivers intended to damage the Respondent’s reputation. We recognize that these letters refer to terms and conditions of employment and, in this sense, refer to a “labor dis- pute” with the Respondent. But these references are mi- nor in comparison with the many disparaging remarks, which did not involve terms and conditions of employ- ment, set forth in the letters. For these reasons, we re- verse the judge’s findings that Caouette, Grasso, and MacDonald engaged in protected concerted activity and 8 It is undisputed that the Respondent refused to hire Caouette, Grasso, and MacDonald because of their letters to the school commit- tee. Accordingly, the only issue presented is whether the letters consti- tuted protected conduct under the Act and, once that is decided, our inquiry ends. See American Steel Erectors, Inc., 339 NLRB 1315, 1316 (2003) (relying on Neff-Perkins Co., 315 NLRB 1229 fn. 2 (1994), for the proposition that the “Wright Line analysis [is] unneces- sary in [a] single-motive case”). Accordingly, we disagree with our dissenting colleague’s assertion that a burden-shifting analysis, such as that used in Waste Management of Arizona, 345 NLRB 1339 (2005), a pretext case, is appropriate here. that the Respondent violated the Act by refusing to hire, or consider for hiring, Caouette, Grasso, and MacDonald. Our dissenting colleague’s reliance on Town & Coun- try Electric, 516 U.S. 85 (1995), is misplaced. That case held that salt applicants were employees within the meaning of Section 2(3) of the Act. We do not question the statutory employee status of any of the drivers in- volved herein. That case also held that the salts’ inten- tion to organize was not an act of disloyalty to the pro- spective employer. While we agree with that general proposition, we observe that the letters here did not sim- ply indicate an adherence to the Union. More impor- tantly, the letters reflected an effort to undermine the Respondent’s standing in order to secure the school bus contract for First Student, the contract provider preferred by Caouette, Grasso, and MacDonald. We also disagree with the dissent’s suggestion that there is no duty of loyalty owed to a prospective em- ployer by driver-applicants. Just as an employer legiti- mately wants extant employees to be loyal, so a prospec- tive employer legitimately wants prospective employees to be loyal. In both cases, the goal is the same—not to have disloyal employees on the payroll. Indeed, Town & Country, supra, supports this view. The Court in Town & Country did not suggest that the salts had no duty of loyalty to the prospective employer. Rather, the Court held that the salts’ actions were not disloyal. Our colleague cites cases where the Board held that certain communications were not disloyal. However, none of those cases involved the fact pattern here. The individuals here attacked the capacity of the Respondent to safely drive school children, a matter that would be of the utmost concern to the school board. It matters not whether the communications were true or false. Indeed, we may applaud these individuals for raising a matter of public concern. But, the issue here is whether the Na- tional Labor Relations Act affords protection to those individuals. Where, as here, the drivers’ letters implicate the safety of children, not the common concerns of em- ployees, and those letters are aimed at keeping the Re- spondent from becoming the new bus service contract provider, we conclude that the NLRA does not offer pro- tection to the drivers. For all of the above reasons, we conclude that the let- ters of five of the individuals were unprotected. As set forth below, we conclude that six other letters were pro- tected. The dissent repeatedly notes that the Respondent did not distinguish between the five letter writers and the six. However, the General Counsel had the burden of establishing that the activity was protected, and we have the obligation to decide whether he has met that burden. We conclude that he has done so for the six and not for FIVE STAR TRANSPORTATION, INC. 47 the five. Similarly, inasmuch as the discharges were based on the letters, we do not think it inappropriate to analyze the content of each of the letters. Further, the fact that the purpose of the letters was to maintain terms and conditions of employment does not itself establish that all of the letters were protected. Even if a goal con- cerns terms and conditions of employment, that does not necessarily yield a conclusion that the means are pro- tected. To take one of many examples, a strike in breach of contract may be aimed at improving terms and condi- tions of employment but it is nonetheless unprotected. Finally, we do not agree with the dissent’s hypothetical in fn. 32. If the Respondent had considered the content of individual letters and had refused to hire any of the letter-writers, there would be a violation as to the pro- tected letters, but no violation as to the unprotected ones. This would not be a “pretext” case. The Respondent’s real reason for nonhire would be the individual letters. As to some, the Respondent would be correct. As to others, it would be incorrect. C. Drivers Whose Letters Raised Common Employment- Related Concerns The final group of drivers consists of six drivers whose letters all specifically referred to the drivers’ common concerns about their employment conditions in conjunc- tion with the awarding of the new bus services contract to the Respondent. The letters written by drivers Steve Kahn, Suzanne LeClair, Terri Nadle, Caron Rose, Pauline Taylor, and Deborah Wenzel urged the school committee to retain First Student as the contract pro- vider, on the grounds that the drivers were concerned that the Respondent would not maintain the terms and condi- tions of employment that the drivers had negotiated with First Student. Unlike the letters of Caouette, Grasso, and MacDonald, however, none of these letters significantly disparaged the Respondent’s business. We find that the letters of Kahn, LeClair, Nadle, Rose, Taylor, and Wenzel were protected under Section 7 of the Act. We note that each driver expressed concerns about the Respondent within the context of the drivers’ common desire to retain their negotiated terms and con- ditions of employment.9 Further, to the extent that any of 9 The following excerpts support this finding: The bus drivers have two main concerns. The first concern is that Five Star undercut the other bidders by not agreeing to adhere to our current labor agreement. This created a less than equal playing field among bidders. [Kahn’s letter.] As a driver, it is very unsettling to have the fate of your career put in jeopardy every three years. We have finally received a rate of pay and benefits that are comparable to most other towns and communities. We are not looking for any more, but to maintain what we have and with this new company we will lose everything. The Belchertown these drivers’ letters contained statements criticizing the Respondent, such statements were minor and occurred in the context of the drivers expressing their common em- ployment concerns. As a result, we find that the judge properly found that Respondent violated Section 8(a)(1) of the Act by refusing to hire, or considering for hire, these six drivers. The Respondent is not a Successor Employer Having found that nine drivers who wrote letters to the school committee had engaged in protected concerted activity and should have been hired by the Respondent, the judge concluded that the Respondent was a successor employer of First Student. Central to the judge’s finding was his determination that, but for its unlawful refusal to hire the discriminatees, 11 of the Respondent’s 20 regu- lar drivers and two of the Respondent’s three “spare” drivers (i.e., a total of 13 employees) would have been former First Student employees.10 In light of our finding that only 6 drivers were unlaw- fully denied employment, it follows that, at most, only 10 School System employees and Town employees all receive decent rates of pay and benefits without threat of losing their contracts, please don’t allow this company to come in and take everything we have worked so hard for. [LeClair’s letter.] I would hope Five Star will keep the drivers that are very familiar with the roads and children. Will the parents and student have the same quality of service? Will The Drivers still have the benefits, incentives and wages? [Nadle’s letter.] Eighteen of our drivers live in Belchertown, have children in the school system, pay taxes and are voters. It is my hope that the school committee will take into consideration the concerns of the drivers. These concerns being: (1) Will we have safe and dependable equip- ment to drive? [;] (2) When a driver needs assistance immediately, will help be there quickly? [; and] (3) Will the drivers be treated fairly? (This includes pay rate and benefits.) [Rose’s letter.] I was very surprised to hear how some bus companys will try and un- der bid our current employer and not include in their bids our current wages and benefits. I hear Five Star Transportaion i[s] the low bidder this time. They bid less per day than First Student currently services the work. Life is hard at these times now I can’t imagine how its gonna be with someone bidding lower then what we have now. Also Five Star has not indicated whatsoever that they will honor our correct wages and benefit package. They are also a non-union company. It also makes you wonder how much quality service they can provide and safety with such a lower bid. That really makes me wonder. . . . . It would be fair to see a re-bid with a[n] even field created, where all bidders should go by our current Labor Agreement.” [Taylor’s letter.] [typographical errors in original]. Based on the bid amount, I do not see how Five Star could possibly plan to give the drivers a competitive wage and benefit package com- parable to what they are currently receiving. [Wenzel’s letter.] 10 One of the criteria for a finding of successorship is that a majority of the new employer’s employees had been employed by the predeces- sor. See NLRB v. Burns Security Services, 406 U.S. 272 (1972); accord: Fall River Dyeing Corp. v. NLRB, 482 U.S. 27 (1987). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 48 former First Student drivers were employed by Respon- dent or unlawfully denied employment. Consequently, we reject the judge’s finding that the Union had majority status among the Respondent’s drivers.11 As a result, we reverse the judge’s finding that the Respondent was a successor employer to First Student.12 ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge as modified below and orders that Five Star Transportation, Inc., Agawam, Massachusetts, its officers, agents, suc- cessors, and assigns, shall take the action set forth in the Order as modified. 1. Delete paragraph 2(a) and reletter the subsequent paragraphs. 2. Substitute the following for the former paragraphs 2(b) and (c) “(a) Within 14 days from the date of this Order, offer Steve Kahn, Suzanne LeClair, Terri Nadle, Caron Rose, Pauline Taylor, and Deborah Wenzel instatement to the position they would have held absent the Respondent’s refusal to hire them or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges they would have enjoyed absent the Respondent’s refusal to hire them.” “(b) Make Steve Kahn, Suzanne LeClair, Terri Nadle, Caron Rose, Pauline Taylor, and Deborah Wenzel whole for any loss of earnings and other benefits suffered as a result of the Respondent’s refusal to hire them, with in- terest, as set forth in the remedy section of the judge’s decision.” 3. Substitute the attached notice for that of the admin- istrative law judge. MEMBER LIEBMAN, concurring in part and dissenting in part. 11 It is undisputed that the unit would, at the least, include the Re- spondent’s regular drivers. Thus, the smallest possible unit would be 20 employees. The Respondent contends that, for the purpose of determin- ing whether there was a successorship majority, the unit should also include additional, “spare” drivers. It is not necessary for us to resolve that issue, because adding those spare drivers, none of whom had been employed by First Student, would only decrease the percentage, already less than a majority, consisting of former First Student drivers. Because it is clear that a majority of the Respondent’s drivers would not have been former First Student employees, even in the absence of the Respondent’s unlawful conduct, we do not find it necessary to reach the issue of whether the judge properly applied the Davison-Paxon test in the instant case. Davison-Paxon, 185 NLRB 21 (1970). 12 Further, because we find that the Respondent is not a successor employer to First Student, the General Counsel’s exception that the judge erred in failing to include a finding of an 8(a)(5) violation in his decision is rendered moot. The majority errs in upholding the Respondent’s re- fusal to hire five school bus drivers because (as the ma- jority correctly recognizes) they and six other driver- applicants engaged in a concerted letter-writing cam- paign “seeking to protect . . . their legitimate, mutual interest in maintaining their terms and conditions of em- ployment that had been negotiated with their previous employer.” That result follows, the majority says, from the content of the drivers’ individual letters. But viewing each letter in isolation is a mistake. The letters were all part of a concerted campaign aris- ing out of a labor dispute, and Respondent Five Star Transportation, Inc. concededly acted against the driver- applicants on that general basis (and not based on the particular content of the individual letters). This error aside, the majority is mistaken in its analysis of the five drivers’ individual letters. The letters of two drivers raised safety concerns that necessarily implicated their own terms and conditions of employment. The letters of the remaining three drivers did not, in fact, amount to unprotected “disparagement.” Five Star, then, unlaw- fully refused to hire not just 6 of the drivers-applicants, but all 11—including the 5 drivers separated out by the majority (but not by Five Star). Consequently, as a suc- cessor employer, Five Star was required to recognize the drivers’ union, contrary to the majority’s conclusion. I. In early 2003, the Belchertown School District put its bus service contract up for bid. The drivers of the in- cumbent contractor (First Student, Inc.) were represented by United Food and Commercial Workers Local 1459. The Union’s secretary-treasurer, Daniel Clifford, at- tended a meeting at which the District passed out the specification for its upcoming bus contract. After the meeting, Clifford sent letters to all prospective bidders, including Five Star, indicating that the Union wished to continue to represent the drivers, no matter who won the bus contract. Five Star never responded to the Union’s overture. Five Star was the lowest bidder at the District’s “bid opening” meeting on January 16, 2003. After the bid opening meeting, in a letter to the District’s head of transportation, Union Official Clifford expressed concern that employees might not maintain their current wage and benefit package because Five Star’s bid “had come in so low.” Five Star was a nonunion company that paid lower wages and benefits to its drivers than First Student paid, and its bid was significantly lower than First Stu- dent’s existing contract price. Clifford hoped to convince the District to rebid the contract with a resolution requiring that all bidders re- spect the Union’s collective-bargaining agreement. On FIVE STAR TRANSPORTATION, INC. 49 January 31, 2003, Clifford and driver Andrea Mac- Donald, the shop steward, met with a group of drivers to discuss their concerns. Clifford asked the drivers to write letters, make phone calls, or talk to school commit- tee members. The drivers met again on February 7 and discussed their e-mails, letters, and calls that they had prepared as part of their campaign. They then identified two drivers, including MacDonald, as spokespersons for a February 11 meeting of the District School Committee. In advance of the meeting, Clifford also passed out pack- ets to each of the school board members, asking them to rebid the contract and require adherence to the Union’s labor agreement. Before the February 11 meeting, the District’s superin- tendent of schools, Richard Pazasis, called Five Star’s president, Theresa Lecrenski. According to Lecrenski, Pazasis told her that he had received e-mails and letters about Five Star’s safety record, maintenance history, and treatment of employees. He told her that current drivers had written some of the e-mails and letters. She asked for copies, which she later received. At the February 11 school committee meeting, driver and shop steward MacDonald spoke about the drivers’ concerns regarding “our jobs, our wages, and our health benefits” and “safety issues we were aware of with the company.” She requested that bidding be reopened so that all the contractors would bid with the union agree- ment in mind. Union Official Clifford expressed the same view. The next morning, Clifford and 10 drivers (including Donald Caouette and MacDonald) met with Superinten- dent Pazasis. Pazasis assured them that he would do a thorough investigation of the issues that the drivers raised, and promised to talk to representatives of other school districts. On February 24, 2003, the District’s School Commit- tee held a meeting to announce its new contract. Union official Clifford and a number of the drivers (including Charles Kupras and MacDonald) attended. Superinten- dent Pazasis began the meeting by stating that he had discussed the concerns raised by the drivers with other school districts, but that he was satisfied with what he learned. The meeting ended with the committee award- ing the contract to Five Star. At the end of the meeting, Union Official Clifford told driver MacDonald to talk to Five Star President Lecren- ski about the drivers’ wages and benefits. As she walked outside with her fellow drivers, MacDonald asked Le- crenski if they might meet to discuss the drivers’ options. MacDonald testified that Lecrenski looked over her shoulder, said, “I don’t think so,” and kept walking. On February 27, 2003, Lecrenski signed the District’s contract on behalf of Five Star. Later, she picked up cop- ies of the drivers’ e-mails and letters from Superinten- dent Pazasis’ office. She immediately read them. Shortly thereafter, Lecrenski decided that, solely because of their letters, Five Star would not hire any of the driv- ers. At the hearing in this case, Lecrenski explained her reasoning, asking rhetorically “Why would I want to hire someone who is against me before he even started work- ing for me?” Lecrenski’s later testimony is significant: Q. And the reason that you did not hire them or consider them for hire was because they sent the let- ters? A. They were trying to hurt me. Yes, that is cor- rect. . . . . Q. So you looked at the letters in the big picture and treated the authors of the letters all of the same. Did you not? A. Anyone who is trying to hurt me and my company would not be a team player. So I guess I would have to answer yes to that. They were all against me. Q. So it did not matter to you what the particular letter said. It offended you that the Drivers had writ- ten the letters to the School Committee expressing their concerns. A. Well, I had to read the letter first to make sure what it said. They were against me. I mean why would I want someone who was against me? They did not even know me. They did everything that they could to deter the School Committee from giv- ing me the contract. It [sic] is not a team player. It is just not a team player. In May 2003, Lecrenski had phone conversations with drivers Rose, Ocasio, Nadle, and Taylor. She testified that she told each of them the same thing: that they were not being considered for hire because they wrote letters or e-mails “trying to deter the School Committee from awarding the contract to Five Star.” She told each that she did not want this type of employee on her team. II. The majority begins by finding, correctly, that “all of the drivers engaged in concerted activity by preparing and submitting individual letters to the School Commit- tee.” It then divides the driver-applicants into three groups, based on the content of their individual letters, in order to determine whether they engaged in protected DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 50 activity. As to one group of six drivers,1 the majority finds refusal-to-hire violations, observing that these driv- ers “expressed concerns about the Respondent within the context of the drivers’ common desire to retain their ne- gotiated terms and conditions of employment” and that any disparagement of the Respondent “was minor and occurred in the context of the drivers expressing their common employment concerns.” I concur in that result. But the majority finds that the letters of the remaining five drivers, which fall into two groups, were unpro- tected, and so finds no unlawful refusal to hire with re- spect to those drivers. I disagree. As I will explain, the majority’s general approach (ex- amining the content of the individual letters) is mistaken, although it leads to the right result with respect to six of the drivers.2 But even if the majority were correct in parsing the letters separately, its analysis with respect to the five “unprotected” letters is mistaken. A. On the record here, an unlawful refusal to hire all 11 of the driver-applicants has been established. Contrary to the majority, the issue of whether a particular driver en- gaged in protected activity (and suffered retaliation as a result) does not turn on the individual content of each driver’s letter, apart from the fact that each letter was part of a concerted effort before the school committee to pre- vent Five Star from winning the bus contract (and so to preserve the drivers’ union-negotiated terms and condi- tions of employment).3 As the Board has explained, in cases like this one involving “employee communications to third parties seeking assistance in an ongoing labor dispute,” the “touchstone [is] . . . whether the communi- cation was a part of and related to the ongoing labor dispute,” not whether the communication referred to par- ticular issues involved in the dispute. Allied Aviation Service Co. of New Jersey, 248 NLRB 229, 231 (1980) (emphasis in original). The drivers’ effort was protected under Section 7 of the Act, as the majority effectively acknowledges in find- ing that Five Star unlawfully refused to hire six of the drivers who participated in the campaign before the 1 The six are Steve Kahn, Suzanne LeClair, Terri Nadle, Caron Rose, Pauline Taylor, and Deborah Wenzel. 2 I agree with the majority that, insofar as the issue is material, the individual letters of the six drivers did not lose the protection of the Act, based on their content. 3 That campaign, of course, involved not only letter-writing, but also personal statements before the school committee (including by driver MacDonald, who was denied employment by Five Star), a meeting with Superintendent Pazasis (which included drivers MacDonald and Don- ald Caouette, also denied employment), and attendance at a school committee meeting (again including MacDonald, as well as driver Charles Kupras, also denied employment). school committee.4 The majority properly acknowledges that Five Star president “Lecrenski admitted that her de- cision not to hire the . . . eleven [driver] applicants was based solely on the fact that each had sent a letter to the School Committee.” That admission established the re- fusal-to-hire violations.5 Obviously, the refusal to hire all of the drivers demon- strates that Five Star did not distinguish among them, based on the particular content of their letters. Lecren- ski’s testimony, set out earlier, confirms that fact. What mattered to her was simply that the eleven drivers each had sent letters that opposed Five Star’s bid—as she told four of the drivers herself. Lecrenski said she read each letter, in order to verify that the letter writer was “against” her. As she testified, it was the common fea- ture of all the letters that solely motivated her decision not to hire the drivers. The letters showed that “[T]hey were against [her].” Every driver who sent a letter was “not a team player.” Nothing in Lecrenski’s testimony suggests that she re- garded some letters as somehow different from others or that she focused on the particular content of individual letters. Only the majority does so. But there is no sound basis for this approach, given that Five Star’s motive in refusing to hire the drivers was based entirely on the statutorily protected aim of the drivers’ campaign (pre- serving their working conditions by preventing Five Star from winning the contract). B. The majority divides these five drivers into two groups, which I address in turn. The majority’s analysis is flawed not only in analyzing the drivers’ letters indi- vidually, but also on its own terms. Insofar as the par- ticular content of the letters matters, the majority errs in failing to find the letters statutorily protected. 4 Eastex, Inc. v. NLRB, 437 U.S. 556, 565–567 (1978) (endorsing decisions holding that Sec. 7’s “mutual aid or protection” clause “pro- tects employees from retaliation . . . when they seek to improve work- ing conditions through resort to administrative and judicial forums” and that “employees’ appeals to legislators to protect their interests as em- ployees are within the scope of this clause”). See, e.g., North Carolina License Plate Agency #18, 346 NLRB 293 (2006) (complaint to state contracting agency by contractor’s employees). See generally 1 The Developing Labor Law 239–241 (5th ed. 2006) (John E. Higgins, Jr., ed.). 5 See Tradesmen International, Inc., 332 NLRB 1158 (2000) (find- ing refusal-to-hire violation where employer did not dispute that union organizer was denied employment solely because of testimony before municipal board), enf. denied 275 F.3d 1137 (D.C. Cir. 2002). As the Tradesmen Board observed, “it is well settled that ‘activity that is oth- erwise protected does not lose its protected status simply because [it is] prejudicial to the employer.’” 332 NLRB at 1160 (brackets in origi- nal), quoting NLRB v. Circle Bindery, Inc., 536 F.2d 447, 452 fn. 7 (1st Cir. 1976). FIVE STAR TRANSPORTATION, INC. 51 1. The majority concludes that the letters of two drivers, Candy Ocasio and Charles Kupras, were “not sufficiently related to the drivers’ terms and conditions of employ- ment to constitute protected conduct.” Without a persua- sive explanation, the majority rejects the view that “the letters should be interpreted as raising the drivers’ com- mon concerns simply because they were written as part of the drivers’ letter-writing campaign.” Citing Waters of Orchard Park,6 the majority concludes that the “con- tent of [the] letters of Ocasio and Kupras did not “consti- tute protected conduct,” because the letters “focused solely on general safety concerns and did not indicate that their concerns were related to the safety of the driv- ers as opposed to others.” The majority’s approach is flawed. As the majority itself recognizes, the drivers’ cam- paign was both concerted (it involved the Union and sev- eral drivers, acting together) and protected (the drivers acted to preserve their existing terms and conditions of employment, in the context of a labor dispute). Ocasio and Kupras engaged in protected, concerted activity by participating in that campaign and sending letters to the school committee.7 In turn, Five Star refused to hire all drivers who wrote letters (including Ocasio and Kupras) because they participated in the letter-writing campaign, not because of the individual content of their letters.8 But even ignoring that the letters were an inextricable part of the Union’s campaign and assuming that only their content matters, each of the two letters—or, more properly speaking, the sending of those letters—was pro- tected, because both Ocasio and Kupras referred to the safety of Five Star’s buses. Ocasio, who said she wrote “as a school bus driver” employed by First Student (and as “a resident of Belchertown and a mother of two chil- dren who attend Belchertown schools”), asserted among other things that Five Star had “been known to be unreli- able with buses being unsafe.” Kupras stated, in part, that “Five Star buses are of low standard and maintained inadequately.” He contrasted the standards of First Stu- dent, including “safe vehicles and most importantly the personnel who have all proven to be responsible profes- sionals.” Contrary to the majority’s view, these state- ments directly implicated the drivers’ terms and condi- 6 341 NLRB 642 (2004). 7 Kupras also attended a meeting of the school committee. 8 The majority insists that “it was the content of the letters, not the act of sending them, that caused the discharges.” In support, it cites the testimony of Five Star President Lecrenski that she read the letters. But Lecrenski’s testimony, discussed earlier, establishes that the only “con- tent” of the letters that mattered to her was each driver’s expressed opposition to Five Star’s bid, not the particulars of what the driver wrote. tions of employment.9 Unsafe buses are obviously a danger not only to passengers, but also to drivers.10 Waters of Orchard Park, cited by the majority, does not support its position. There, nurses who called a state agency to complain about excessive heat in a nursing home “explicitly disclaimed an interest in their own working conditions when they called the hotline,” and insisted that they were calling only to protect patients. 341 NLRB 642, 643. It was on that basis alone that a Board majority found no violation with respect to the nurses’ discharge for complaining.11 Here, in contrast, Ocasio and Kupras never disclaimed an interest in their own working conditions. Indeed, Ocasio identified her- self as a First Student bus driver, while Kupras touted the professionalism of First Student personnel. The majority asserts that the letters of Ocasio and Ku- pras were “not aimed at improving terms and conditions of employment under the Respondent.” But what mat- ters, as the majority seems to recognize elsewhere, is that the drivers’ campaign was directed to maintaining their existing terms and conditions of employment. There is no statutory requirement that the letters be aimed at the terms and conditions of employment of any particular prospective employer in order for them to be protected by Section 7. See Eastex, supra, 437 U.S. at 566–567. Nor were the letters required to be “virtual carbon cop[ies]” of the letters that the majority does find to be protected. Allied Aviation, supra, 248 NLRB at 231. The Ocasio and Kupras letters indisputably were part of and related to the letters of the other drivers, satisfying the controlling standard. Id. 2. According to the majority, the remaining three drivers (Donald Caouette, Patty Grasso, and Andrea Mac- Donald) sent letters that constituted unprotected “dispar- agement of the Respondent’s business.”12 The majority 9 As the administrative law judge here recognized, despite upholding the refusals to hire, “Ocasio and Kupras’ concern for the safety of the busses [sic] could be considered as pertaining to a condition of em- ployment, since, if they had been hired, they would be driving one of the Respondent’s busses [sic].” 10 The welfare of an employer’s customers or clients is often inextri- cably intertwined with the working conditions of its employees. See, e.g., Misercordia Hospital Medical Center v. NLRB, 623 F.2d 808, 813 (2d Cir. 1980) (discussing relationship between welfare of patients and working conditions of hospital staff). 11 Member Meisburg concurred separately, joining Chairman Bat- tista and Member Schaumber, and supplying the majority rationale. Member Walsh and I dissented. While I believe that Waters of Or- chard Park was wrongly decided, I acknowledge that the decision represents Board law. 12 In addition to writing a letter, McDonald addressed the School Committee at a meeting, met with Superintendent Pazasis, and at- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 52 invokes the Supreme Court’s Jefferson Standard deci- sion13 and its progeny in Board case law to conclude that the drivers’ letters lost the protection of the Act. That conclusion is mistaken for several reasons. To begin, the notion of unprotected “disparagement” depends on a duty of loyalty created by the existence of an employment relationship, as Jefferson Standard makes clear. There, the Supreme Court upheld the dis- charge of employees who circulated a disparaging hand- bill that made no reference to the employees’ own inter- ests or to an ongoing labor dispute between the employ- ees’ union and the employer. The Court observed that “[t]here is no more elemental cause for discharge of an employee than disloyalty to his employer.” 346 U.S. at 472.14 The Board, in turn, has recently recognized that in the absence of an existing employment relationship, a statutory employee owes no duty of loyalty to a future, prospective employer. American Steel Erectors, Inc., 339 NLRB 1315, 1317 (2003).15 Here, of course, there was no employment relationship between the drivers and Five Star. At the time the letters were sent, the drivers had not even applied to Five Star for work: Five Star had not yet been awarded the school bus contract; the award was precisely what the drivers hoped to prevent because it represented a grave risk of loss not only of their existing terms and conditions of employment but also of their jobs. As a result, the driv- ers could hardly be guilty of disloyally disparaging Five tempted to speak to Lecrenski about the drivers’ situation. Caouette participated in the meeting with the superintendent. 13 NLRB v. Local 1129, 346 U.S. 464 (1953). 14 A leading treatise contends that the “logic of Jefferson Standard is not compelling and its reach unclear,” citing the Court’s borrowing of the concept of “cause” from outside the Act and the “admixture of factual elements” on which the holding was based. Robert A. Gorman & Matthew W. Finkin, Basic Text on Labor Law § 16.11 at 426–427 (2d ed. 2004). 15 In American Steel Erectors, supra, the majority found no unlawful refusal to consider the applicant, under the circumstances. The major- ity applied not the Jefferson Standard test, but rather the test used by the Board “[w]hen an employee is discharged for conduct that is part of the res gestae of protected concerted activity.” 339 NLRB at 1316, citing Atlantic Steel Co., 245 NLRB 814, 816 (1979). The applicant, a former union official, had made “disparaging remarks” about the em- ployer to a state agency “in the absence of any labor management dis- pute.” 339 NLRB at 1317. According to the majority, those remarks were “deliberate and outrageous exaggerations,” accusing the employer of unsafe work practices that were the equivalent of “throwing babies into the Merrimack River.” Id. I dissented, arguing that the proper standard was whether the appli- cant’s language was “so extreme that it made him categorically unfit for future service with the [employer]. Id. (emphasis and footnote omitted). In my view, the applicant was a “paid advocate” “guilty of nothing more than hyperbole.” Id. American Steel Erectors does not support the majority’s position in this case. Here, as I will explain, there were no “deliberate and outrageous exaggerations,” and there was a labor dispute. Star, and the Jefferson Standard line of cases has no proper application. The analogy in this case is not with Jefferson Stan- dard, but with the Supreme Court’s decision in Town & Country Electric.16 Five Star simply assumed that be- cause the driver-applicants had participated in the pro- tected, concerted letter-writing campaign—at a time when they owed Five Star no duty of loyalty—they were categorically unfit for employment when they applied, following the school committee’s award of the contract to Five Star. As the Supreme Court explained in Town & Country, in the context of the statutory-employee status of paid union organizers who seek employment, employ- ers are not legally entitled to base their hiring decisions on such assumptions. “[E]ven if a company perceives . . . protected activities as disloyal,” they remain pro- tected. 516 U.S. at 96. There is no basis for concluding that the driver- applicants were categorically unfit for employment, sim- ply because they participated in the letter-writing cam- paign. That campaign was designed to preserve the driv- ers’ status quo. Once Five Star had been awarded the contract, the drivers’ efforts to prevent the award had no connection to their fitness for employment. If they wanted to continue their service as school bus drivers, the drivers had no choice but to seek, and seek to keep, jobs with Five Star. Presumably, then, they would be loyal to their new employer. On the other hand, it is surely no coincidence that by refusing to hire the driver- applicants, Five Star avoided a duty, as a successor em- ployer, to recognize the drivers’ union. In any case, Five Star did not justify the refusal to hire the three drivers in question because of their supposed “disparagement” of the Company. Rather, it acted on a common basis with respect to all of the driver-applicants: their participation in the letter-writing campaign, as op- posed to the individual content of their letters. Even as- suming that some of the content of the letters was unpro- tected (a point I do not concede), the testimony of Com- pany President Lecrenski precludes Five Star from argu- ing—much less proving—that it refused to hire drivers Caouette, Grasso, and MacDonald because of their un- protected statements. It is not enough to show, as the majority apparently be- lieves, that certain statements were unprotected. See, e.g., Waste Management of Arizona, 345 NLRB 1339, 1341–1342 (2005).17 The letters in question were sent as 16 NLRB v. Town & Country Electric, Inc., 516 U.S. 85 (1995). 17 In Waste Management of Arizona, supra, a union supporter en- gaged in an argument with a supervisor, involving a reduction in pay, during which employee screamed profanities. The Board found that the employee “lost the protection of the Act by engaging in opprobrious FIVE STAR TRANSPORTATION, INC. 53 part of the protected concerted letter-writing campaign. Moreover, the majority acknowledges that the letters did “refer to terms and conditions of employment, and in this sense, [did] refer to a ‘labor dispute’ with” Five Star. The General Counsel has shown, at a minimum then, that Five Star’s refusal to hire was based in part on the pro- tected, concerted activity of Caouette, Grasso, and Mac- Donald. Given Lecrenski’s admission, Five Star, in turn, cannot establish that it would have refused to hire the three drivers even in the absence of this protected con- duct. The majority argues that because “[i]t is undisputed that the Respondent refused to hire Caouette, Grasso, and MacDonald because of their letters to the School Com- mittee,” the “only issue is whether the letters constituted protected conduct under the Act.” That formulation is misleading because Five Star has never argued that it relied on the supposedly unprotected aspects of the three drivers’ letters in refusing to hire them.18 Finally, even assuming that a Jefferson Standard “dis- paragement” approach is proper here, the majority fails to evaluate the three letters correctly, in light of Board precedent. Under the established test, the Board asks whether the communication to a third party is “so disloyal, reckless or maliciously untrue as to lose the Act’s protection,” and it evaluates the communication “in its entirety and in context.” Endicott Interconnect Technologies, Inc., 345 NLRB 448, 451 (2005) (internal quotation marks omit- ted). The Board has cautioned that “great care must be taken to distinguish between disparagement and the air- ing of what may be highly sensitive issues.” Allied Avia- and abusive conduct.” 345 NLRB at 1341. It nevertheless held that given the General Counsel’s showing that antiunion animus was a factor in the discharge of the employee, the employer was required to prove that it would have discharged the employee because of his unpro- tected outburst, even in the absence of protected conduct. Id. at 1342. (I dissented, finding that the employer had not satisfied its burden on this point. Id. at 1343.) 18 Rather, as pointed out, Five Star denied employment to all of the drivers who wrote letters, simply because they wrote letters. It did not distinguish among the letters, nor did it sift through the content of any individual letter. The flaw in the majority’s position is easily demonstrated. Assume that Five Star had argued that it considered the particular content of individual letters, that it refused to hire only those drivers whose state- ments lost the protection of the Act, and that its action was based on the unprotected nature of the statements. On the record here, the General Counsel would have established that Five Star’s defense was a pretext, in light of the fact that it refused to hire all the drivers. Under the majority’s view, ironically, Five Star is shielded from li- ability because it never asserted a lawful basis for refusing to hire Caouette, Grasso, and MacDonald (the arguably unprotected nature of certain of their statements), but instead invoked only an unlawful rea- son for refusing to hire all of the drivers (their protected opposition to Five Star’s bid). tion, supra at 231.19 The majority’s analysis reflects a lack of requisite care. The result is to chill employees involved in labor disputes from seeking the help of third parties—in this case, a government body that the drivers were constitutionally entitled to petition. It is certainly true that, in the words of Allied Aviation, the letters of the three driver-applicants raised “highly sensitive issues.” As the majority points out, the letters referred to 1996 incidents involving Five Star that had been reported in newspaper accounts: the failure of Five Star’s buses to start in cold weather, leaving students stranded; Five Star’s hiring of a convicted sex offender who lacked a bus driver’s license; and a Five Star driver with a long history of driving infractions, who drove his route after drinking alcohol at lunch. Five Star was surely embarrassed by these references. But embarrass- ment is not the standard for losing the protection of Sec- tion 7. Rather, as the judge correctly observed: [N]one of the information or contentions communi- cated by the eleven drivers to the Belchertown School Committee were made with knowledge of their falsity, or with reckless disregard of the truth. Indeed, many of the unflattering contentions were accurate, albeit dated. The majority does not take issue with the judge’s char- acterization. Instead, the majority points out that the letters used “inflammatory language,” citing references to Five Star as “substandard” and “reckless” (MacDonald), as dis- playing “incompetence and negligence” (Grasso), and as being “careless” (Caouette). Precedent makes clear, however, that such language is protected by the Act. “Federal law gives license in the collective-bargaining arena to use intemperate, abusive, or insulting language without fear of restraint or penalty if the speaker believes such rhetoric to be an effective means to make a point.” Phoenix Transit System, 337 NLRB 510, 514 (2002). See generally Letter Carriers (Old Dominion Branch No. 496) v. Austin, 418 U.S. 264 (1974). The statements cited by the majority are certainly no more “inflammatory” than other language used by cur- rent employees that the Board has found to be protected, such as: [S]tatements by a bus-drivers’ union to a school board and to parents that questioned the qualifications of re- placement drivers, intimated that the employer was us- ing undue influence to win a contract extension, and 19 “The cases decided subsequent to Jefferson Standard have placed a nuanced and limiting gloss on the concept of ‘disloyalty.’” Gorman & Finkin, Basic Text on Labor Law, supra, §16.11 at 427. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 54 characterized the employer’s owners as “belligerent” and arrogant.”20 [S]tatements in letters to customers that the employer was using a procedure that was a “hazzard [sic] to air- line personel [sic], equipment, facilities, and custom- ers” and that employees’ “only purpose is to act as a scapegoat, should a tragedy occur.”21 [S]tatements to a customer that the employer “can’t fin- ish the job,” that “these people never pay their bills,” that the employer “is no damn good,” and that the em- ployer’s president was “no damn good” and a “son of a bitch.” 22 [S]tatements reported in a newspaper and in an on-line forum that the employer was “being tanked” and “put into the dirt” by management, and that layoffs had left “gaping holes” and “voids in the critical knowledge base” of the company.23 The majority cites no precedent at odds with these deci- sions. Instead, the majority asserts that the use of “inflamma- tory language,” the references to “incidents not related to the drivers’ group concerns,” and the fact that references to the labor dispute were “minor in comparison to the disparaging remarks,” together meant that the letters were unprotected. Such a fine parsing of the drivers’ letters has no support in the Board’s case law, even apart from the mistaken reliance on “inflammatory language.” Indeed, the Allied Aviation Board has rejected essentially the same approach. What matters, the Board said there, is “whether the communication was a part of and related to the ongoing labor dispute.” 248 NLRB at 231 (em- phasis in original). A more restrictive test, like the one created by the majority here, “would, in many cases, be depriving employees of what may be their most cogent argument for obtaining the third party’s aid.” Id. at fn. 10. The majority’s test, moreover, is both unworkable and under-protective. It offers employees no guidance in deciding how much “protected” matter a communication must contain, in relation to what the Board may deter- mine to be content that is unrelated to group concerns, 20 Montauk Bus Co., 324 NLRB 1128, 1138–1139 (1997). The ma- jority’s assertion that the “judge in Montauk applied a legal analysis different from the analysis appropriate here” is simply incorrect. The judge applied the Jefferson Standard test in rejecting the argument that a strike was unprotected because the Union had disparaged the em- ployer’s product. Id. at 1138. 21 Allied Aviation, supra, 248 NLRB at 229, 231. 22 Emarco, Inc., 284 NLRB 832, 833–834 (1987). 23 Endicott Interconnect, supra, 345 NLRB at 452–453. before employees may safely seek the aid of a third party in a labor dispute. III. Five Star, then, unlawfully refused to hire all 11 driv- ers who participated in the letter-writing campaign. The majority’s mistaken failure to find violations with respect to all 11 drivers has the exacerbating effect of excusing Five Star’s failure to recognize the Union—just as the drivers feared would happen. Absent unlawful discrimi- nation, seventeen of Five Star’s drivers (the 11 drivers at issue here, plus 6 drivers who were hired) would have been former employees of First Student, a number suffi- cient to make Five Star a successor employer, required to recognize the Union. As the judge did, I would find that Five Star violated Section 8(a)(5) by failing to do so. Accordingly, I dissent. 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 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 discriminate against any of you in con- sideration for employment for engaging in activities pro- tected by the National Labor Relations Act. WE WILL NOT tell any of you that you are being dis- criminated against in consideration for employment due to your protected activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the National Labor Rela- tions Act. WE WILL, within 14 days from the date of this Order, offer Steve Kahn, Suzanne LeClair, Terri Nadle, Caron Rose, Pauline Taylor, and Deborah Wenzel instatement to the position they would have held absent the Respon- dent’s refusal to hire them or, if those positions no longer exist, to substantially equivalent positions, without FIVE STAR TRANSPORTATION, INC. 55 prejudice to their seniority or any other rights or privi- leges they would have enjoyed absent the Respondent’s refusal to hire them. WE WILL make Steve Kahn, Suzanne LeClair, Terry Nadle, Caron Rose, Pauline Taylor, and Deborah Wenzel whole for any loss of earnings and benefits suffered as a result of our refusal to hire them, less any net interim earnings, plus interest. WE WILL, within 14 days from the date of this Order, remove from our files any reference to our unlawful re- fusal to hire Steve Kahn, Suzanne LeClair, Terri Nadle, Caron Rose, Pauline Taylor, and Deborah Wenzel, and WE WILL, within 3 days thereafter, notify each of them in writing that this has been done and that their protected concerted activities will not be used against them in any way. FIVE STAR TRANSPORTATION, INC. Elizabeth Tafe and Elizabeth Vorro, Esqs., for the General Counsel. Robert L. Dambrov, Esq. (Cooley, Shrair, P.C.), of Springfield, Massachusetts, for the Respondent. DECISION STATEMENT OF THE CASE ARTHUR J. AMCHAN, Administrative Law Judge. This case was tried in Springfield, Massachusetts, on April 20–22, 2004. The charge was filed on August 14, 2003, and the complaint was issued on March 17, 2004. The General Counsel alleges that the Respondent, Five Star Transportation, Inc., violated Section 8(a)(1) of the Act in re- fusing to consider for hire, and in refusing to hire, 11 job appli- cants because they engaged in protected concerted activity by writing or sending e-mails to the Belchertown, Massachusetts school committee that were critical of Five Star. The 11 alleged discriminatees are former employees of First Student, Inc., which operated the Belchertown school buses before Respon- dent. Five Star concedes that it refused to consider for hire, or hired, any of the 11 alleged discriminatees solely due to the fact that they sent these letters and e-mails to the school committee. In fact, when four of the alleged discriminatees inquired as to the status of their employment applications, Theresa Lecrenski, Five Star’s president, told them they were not being hired due to the fact that they had sent these letters and e-mails to the school committee. The General Counsel alleges that in inform- ing these employees that this was the reason they were not be- ing hired, Respondent committed and independent violation of Section 8(a)(1).1 However, Respondent contends that the letters are not pro- tected due to the fact that they disparaged Respondent and sought to have the school committee award its contract for 1 This is alleged as a separate violation in par. 8 of the complaint. Lecrenski concedes that she told Terri Nadle, Candy Ocasio, Caron Rose, and Pauline Taylor that they were not being hired due to these letters and emails. school bus services to First Student or one of Respondent’s other competitors. Respondent also contends that the letters were individual acts and do not constitute concerted activity. The General Counsel further alleges that Respondent vio- lated Section 8(a)(5) and (1) of the Act in refusing to recognize and bargain with the Union. This allegation is predicated on a contention that had Five Star not illegally discriminated against the 11 former employees of First Student, it would have been obligated to recognize and bargain with the Union as First Stu- dent’s successor. Respondent contends that even if it had hired the 11, a majority of its bargaining unit employees would not have been former members of the First Student bargaining unit. Therefore, it would not have been obligated to recognize and bargain with the Union. On the entire record, including my observation of the de- meanor of the witnesses, and after considering the briefs filed by the General Counsel and Respondent, I make the following FINDINGS OF FACT I. JURISDICTION Respondent, Five Star Transportation, Inc., a corporation, has its main office in Agawam, Massachusetts, and operates school buses under contract with several school districts in the vicinity of Springfield, Massachusetts. It annually derives reve- nues in excess of $250,000, and purchases and receives goods at the Agawam facility valued in excess of $5000 directly from points outside of the State of Massachusetts. Respondent admits and I find that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union, Local 1459 of the Transportation Division, United Food and Commercial Workers Union (UFCW) is a labor organiza- tion within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES The Belchertown School District has contracted with private companies to operate its school buses for a number of years. In 1999, Laidlaw Transit, Inc., which had the contract at the time, voluntarily recognized the Union as the exclusive bargaining representative of all regular bus drivers, spare drivers, utility drivers, and trainers employed by Laidlaw at Belchertown. In 2000, Belchertown put its school bus contract out for bids and awarded the contract to Bruce Transportation, Inc., which later changed its name to First Student, Inc. Bruce recognized the Union and signed a collective-bargaining agreement.2 That agreement included provisions for fringe benefits including several paid holidays, employer contributions to employee health insurance, an employer-paid life insurance policy of $15,000 and a seniority system for allocating nonrevenue work and charter trips. First Student and the Union negotiated a new contract in November 2002 with similar provisions in anticipa- tion of the bidding for the 2003–2006 Belchertown school bus contract. On or about January 16, 2003, Respondent Five Star, and the 2 The collective-bargaining agreements between the Union and both Laidlaw and First Student include “special needs drivers” in the bar- gaining unit. However, the Union apparently never represented such employees. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 56 Union learned that Respondent had been awarded the 2003– 2006 Belchertown school bus contract. Five Star has been in business for 35 years operating school buses for a number of localities in the Springfield, Massachusetts area. It has never had employees who were represented by a union. On January 21, Daniel Clifford, a union vice president and business agent for the Belchertown school bus drivers, sent one letter to the associate superintendent of the Belchertown Public Schools and another to Theresa Lecrenski, the president of Five Star. In pertinent part his letter to the associate superintendent stated: Local 1459 has struggled long and hard over the years negoti- ating decent wages and benefits in the industry for our school bus drivers. These area standards are subject to erosion by po- tential “predatory bidding” by less than fair-minded bus op- erators. . . . . Five Star Transportation, Inc. of Agawam bid about $300,000 lower than the current contractor. They bid about $30 a day cheaper than the work that is done currently. We question how they will be able to pay the current wage and benefit package, maintain operation costs (fuel, equipment, etc.) and provide safe and effective service at the bargain basement price. In order to create a level playing field and a more equi- table bid process, we asked previously that any prospective bidder factor into their bid model the wages and benefits of the current labor agreement. The school bus drivers serving Belchertown are your neighbors and fellow taxpayers, their jobs and quality of life are in jeopardy. We hope you will support those that safely transport the district’s school children. [GC Exh. 15.] Clifford faxed to Lecrenski a letter that stated in part: If my information is correct and your organization does intend to seek to replace the current contractor, I want to hear from you promptly and I want to secure from your organization a guarantee that, if you are the successful bidder, our members will continue in their jobs with full seniority, that you will recognize Local 1459 as the exclusive bargaining agent for all of your employees not specifically excluded from representa- tion by the National Labor Relations Act and that you will sit down with Local 1459 immediately upon your selection as the successor to negotiate a successor agreement that our members expect such a contract to be in effect prior to the first bus leaving the yard for the fall semester. If we do not hear from your organization promptly on these issues, we will infer that you do not intend to cooperate in these reasonable demands on behalf of our members and if you are awarded the contract, we will exercise all of our legal options as aggressively as a labor organization could be ex- pected to in protecting the hard-won benefits of its members. [GC Exh. 5.] Theresa Lecrenski received this letter but did not respond to it. Clifford then organized a meeting on January 31, 2003, that was attended by a number of the Belchertown school bus driv- ers. Two of these drivers, Alma Coderre and Lorrie Poulin, had worked for Five Star previously. Coderre told fellow employees that Five Star had fired her because she was unable to work full time after recovering from an injury. Poulin asserted that when the buses had mechanical problems they were not quickly cor- rected. (Tr. 168.)3 Poulin may also have stated that Respon- dent’s drivers did not always conduct pretrip inspections.4 In preparation for the meeting Clifford downloaded a number of unflattering newspapers articles concerning Five Star that ap- peared in the Daily Hampshire Gazette in the spring of 1996. He distributed these articles to the drivers on January 31. One article concerned an incident in February 1996, in which a number of Five Star buses failed to start in extremely cold weather, resulting in a number of students being stranded at their bus stops in the Amherst-Pelham school district. The Am- herst School superintendent was quoted as criticizing Respon- dent for not notifying him of the problem in time for him to delay the opening of school. The newspaper article stated, as Lecrenski testified, that other school bus companies in the Springfield area had similar problems. Lecrenski does not deny that the incident occurred. However, she explained at the in- stant trial that her buses were new and that her company had followed all the manufacturer’s recommendations. There is no evidence that Five Star ever experienced such a problem other than on the one day in question. Another article in March 1996 concerned Five Star’s em- ployment of a convicted sex offender as a school bus driver in Amherst. Due to the conviction the driver did not have a valid Massachusetts school bus driver’s license. Theresa Lecrenski does not deny that the incident occurred. She stated at the in- stant trial that the employment of the driver was the result of an administrative oversight by the Massachusetts Department of Public Utilities.5 A May 1996 article concerned a Five Star driver, who had consumed alcoholic beverages at lunch and then drove a school bus in the afternoon. As a result of failing to take a Breatha- lyzer test, the driver was fired. Another article later that month reported that the driver in question had eight driving infractions between 1983 and 1990, including one for drunken driving and another for driving with a revoked license. Lecrenski does not take issue with the fact that the 1996 incident occurred. No followup to any of these stories appeared in any newspaper giving the exculpatory factors about which Lecrenski testified at the instant hearing. A third article appearing in the Daily Hampshire Gazette in May 1996 reported that the Amherst school district was abro- gating its contract with Respondent and that Respondent was suing the school district for breach of contract. There is no evidence in this record bearing on the accuracy of the story or the outcome of the suit, if there was one. 3 Neither Coderre nor Poulin is an alleged discriminatee in this mat- ter. Neither applied for a job with Respondent. 4 I infer that either Coderre or Poulin was the source of this assertion by Caron Rose in her letter to the Belchertown school committee. 5 According to the news article, in 1996, someone with a commercial driver’s license, but not a school bus driver’s license, could drive a school bus in Massachusetts in a “loosely defined” emergency, gener- ally for not more than 3 consecutive days. FIVE STAR TRANSPORTATION, INC. 57 At the union meeting on January 31, the drivers were en- couraged to write to the Belchertown school committee. Cop- ies of the 1996 newspaper articles were disseminated. The eleven discriminatees and a few other drivers, who never ap- plied for a job with Five Star, wrote such letters between Feb- ruary 3 and 8, 2004. During this period Union Vice President Clifford faxed a recognition agreement to Lecrenski, which she ignored. The letters of the discriminatees are not identical, however, with the exception of Candy Ocasio’s e-mail and Charles Ku- pras’ letter, each one of them explicitly communicates a con- cern as to whether Respondent will retain their services if it is awarded the contract and/or whether it will reduce the wages and benefits the drivers received from First Student.6 The let- ters differ with regard to the emphasis they place on these con- cerns as opposed to the safety of Belchertown school children and in the degree that they disparage Respondent. Donald Caouette’s letter is written both in the first person singular and first person plural. He wrote, “[I]n speaking col- laboratively for the majority of Belchertown drivers, we are extremely concerned about this contract for many reasons and would like the opportunity to convey these concerns to you.” Caouette summarized the benefits provided to the drivers by First Student: health insurance, paid holidays, bonus opportuni- ties and a 401(k) plan. He then complained that the Five Star does not employ part-time drivers. Caouette discussed the inci- dents set forth in the Daily Hampshire articles. With regard to the failure of Five Star’s buses to start, Caouette asserted that this occurred on “a couple of days during the winter back a few years ago.” However, the news articles mention only one day of such a problem. Caouette suggested that the selection of Respondent would compromise the safety of Belchertown’s school children. He opined that if Belchertown parents were presented with Re- spondent’s reputation they would be willing to pay a fee to avoid relying on “a company of this stature.” He concluded by asking for an opportunity for the incumbent drivers to meet with the school committee members to explain their concerns. Patty Grasso’s letter also raised child safety concerns citing the 1996 newspaper articles. She also questioned whether Five Star would retain the current Belchertown drivers and whether they would retain their benefits if they were hired.7 Her letter concluded, “I ask you to reconsider Five Star Transportation as the new school bus contractor. I believe they have made it per- fectly clear that they provide Five Star(s) in name only and not in the service.” Steve Kahn wrote: The bus drivers have two main concerns. The first is that Five 6 Ocasio and Kupras’ concern for the safety of the buses could be considered as pertaining to a condition of employment, since, if they had been hired, they would be driving one of Respondent’s buses. 7 The 2003–2006 contract provided that if the successful bidder was not the current vendor that, “all current drivers and the current supervi- sor on site should be given first consideration for employment (empha- sis added).” The 2000–2003 contract provided that if the successful bidder was not the current vendor, “all current drivers must have a first refusal option for employment.” GC Exhs. 8–11. Star undercut the other bidders by not agreeing to adhere to our current labor agreement. This created a less than even playing field among bidders. Our second concern focuses on student safety: You need to be satisfied with the answer to the following questions. The questions posed relate to maintenance, staffing, and driver qualifications. Kahn made no accusations about Five Star and did not specifically ask the school committee to award the school bus contract to another bidder. However, Kahn asked that it “consider the worth of proven performance balanced against reasonable cost. Ask yourself, how can one company be able to bid lower than the others? What corners will be cut? Please compare reputations.” Charles Kupras wrote: Five Star Transportation has intentionally underbid other companies in the hope of taking advantage of the financial problems being forced on our cities and towns by State budget cuts. Five Star has a long publicized history of problems. The pri- mary issue is safety. Five Star buses are of low standard and maintained inadequately. Some drivers are poorly trained and of questionable character. There have been reported inci- dences of drivers with criminal records. One such driver was allowed to operate while his license was suspended. Five-Star lacks the values of its competitors and fails to warrant the re- sponsibility of transporting our children. The right to re-bid, disregard or veto the low bidder is a deci- sion you must make for the entire community. Please put our children’s safety first. Suzanne LeClair asked the school committee to reconsider awarding the bus contract to Respondent. She stated, “There are several safety concerns with this company, which you have been made aware of, and you can’t put a dollar sign on safety.” LeClair predicted that if Respondent was awarded the contract that the drivers would lose all their benefits. She continued, “What will you be left with? . . . School bus drivers that don’t know your children or care if they get home safely, or in a timely fashion and poorly maintained busses!?” LeClair con- cluded by asking the school to either reconsider the award or to rebid the contract to include the driver’s current wages and benefits. “This would allow more safety oriented companies a fair chance.” Andrea MacDonald in her letter to the school committee characterized Five Star as a “sub standard company” and opined that “the best decision is not made if you chose this company.” She characterized Respondent as having “a poor safety record and work ethic” and being reckless in employing “alcohol abusers, drug offenders, child molesters, and persons that have had their license suspended.” Additionally, she raised the specter of children waiting in the cold beside the road in broken-down buses. MacDonald also expressed concern about wages and benefits and suggested that either the contract should be awarded to a bidder other than Five-Star, or be rebid. In contrast, Terri Nadle’s letter expressed concerns if Five Star was awarded the contract, but made no accusations against DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 58 Respondent and asked nothing specific from the school com- mittee. Nadle wrote: I would hope Five Star will keep the drivers that are very fa- miliar with the roads and children. Will the parents and stu- dent[s] have the same quality of service? Will the drivers still have the benefits, incentives and wages? Candy Ocasio wrote that awarding the school bus contract to Five Star “might not be a wise decision.” She continued: It has been know[n] in the past that this company has hired not only unlicensed drivers, but there have been two incidents of them hiring a convicted child molester, and a driver who was driving a school bus with a half dozen children under the influence. They have also been known to be unreliable with busses being unsafe. Ocasio concluded by stating that she would not have her own children ride on Five Star buses due to her lack of confidence in their safety record. In isolation, Ocasio’s letter would not pro- vide the reader with an indication that she was concerned with the wages and terms of employment of the Belchertown driv- ers—other than the safety of the buses employees would have to drive. Caron Rose told the school committee that based on her re- view of newspaper articles and conversations with former Five Star employees that she had concerns about the safety of Bel- chertown students if Respondent was awarded the school bus contract. She stated that former Five Star drivers (assumedly Coderre and Poulin) had indicated that Respondent did not properly maintain its buses and that it did not require its drivers to complete a pretrip inspection of the bus before leaving the garage. Rose commented favorably on First Student’s mainte- nance of its buses. Rose then stated: Based on Five Star Transportation’s past performances, I feel there will be no continuity of the top-notch service, which Belchertown has become accustomed to, from Joan Crowther [First Student’s supervisor in Belchertown] and her drivers. I know this company had the low bid for the contract, but can a price be put on the safety and well being of our children? She concluded by expressing several concerns, including whether Five Star would treat the drivers fairly with regard to wages and benefits. Pauline Taylor expressed concern about the wages and bene- fits to be offered by Five Star. She continued: They are also a non-union company. It also makes you won- der how much quality service they can provide and safety with such a lower bid. . . . . I have heard some stories about Five Stars drivers and how their company is runed [sic]. It really worries me. I am con- cerned about driving for Five Star and very concerned about letting my children ride on their buses. Taylor then requested that the contract be rebid with what appears to be a union-initiated resolution attached to the bid specifications.8 Deborah Wenzel stated that she did not see how, given the amount of its bid, Respondent could give the drivers a wage and benefit package comparable to what they were receiving from First Student. She continued: I have heard of and read about many of the poor practices of this company. Four of our current drivers left Five Star due to the poor treatment by them. My husband recalls a time when the Belchertown School Committee refused to accept a bid from Five Star. This was because of their mishandling and subsequent forfeiture of the Amherst contract before comple- tion of year one of a five-year contract. Do we really want to put our town in this position? The award of the Belchertown school bus contract was de- layed while the school committee considered the issues raised in the drivers’ letters. Ultimately, however, Respondent was awarded the contract and the superintendent of Schools pro- vided all 11 letters to Lecrenski, pursuant to her request and the Massachusetts Freedom of Information statute. Seventeen Belchertown drivers, who were members of the First Student bargaining unit, applied for a bus driver position with Respondent. Six, none of whom wrote letters to the school committee, were offered employment; four accepted. Respon- dent gave preference to these drivers over applicants who worked for Five Star in other localities and over new hires. Theresa Lecrenski did not consider hiring any of the 11 letter writers, solely due to the fact that they wrote the aforemen- tioned letters to the school committee. Did the Alleged Discriminatees Engage in Concerted Protected Activity Section 7 of the Act provides: Employees shall have the right of self-organization, to form join or assist labor organizations, to bargain collectively through representatives of their own choosing and to engage in other concerted activities for the purpose of collective bar- gaining or other mutual aid or protection. Section 8(a)(1) provides that it is an unfair labor practice to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7. In Myers Industries, 268 NLRB 493 (1984), and again in Myers Industries, 281 NLRB 882 (1986), the Board held that “concerted activities” protected by Section 7 are those “en- gaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself.” However, when individual activity, such as the letter writing campaign in the instant case, is a logical outgrowth of concerns expressed by a group of employees, it is a continuation of the concerted ac- tivity and protected by Section 7. Salisbury Hotel, 283 NLRB 685 (1987); Every Woman’s Place, 282 NLRB 413 (1986). 8 I assume this is the resolution that appears on the last page of GC Exh. 16. It essentially requires any successor contractor to offer em- ployment to the current Belchertown drivers and abide by the terms of the Union’s collective-bargaining agreement with First Student. Tay- lor’s letter is the only 1 of the 11 that makes specific reference to this resolution. FIVE STAR TRANSPORTATION, INC. 59 I find that the letter writing campaign to the school commit- tee was a logical outgrowth of the concerns expressed by the employees collectively at the January 31, 2003 meeting. More- over, the fact that Respondent treated the 11 letter writers as a group in deciding not to consider them for employment, leads me to conclude that Lecrenski recognized the concerted nature of the letter writing campaign. Mike Yurosek & Son, Inc., 306 NLRB 1037 (1992); 310 NLRB 831 (1993). Respondent’s be- lief that the employees acted in concert brings them within the protection of the Act even if their activities were not concerted. Daniel Construction Co., 277 NLRB 795 fn. 4 (1985); Mon- arch Water Systems, 271 NLRB 558 (1984). Were All or Some of the Letters Protected Alleged Interference with Respondent’s Contractual Relation- ship Respondent relies on the Board’s recent decision in ATC/Forsythe & Associates, 341 NLRB 501 (2004), in arguing that the alleged discriminatees’ letters to the school committee are not protected by Section 7 because they attempted to inter- fere with the contractual relationship or potential contractual relationship between Respondent and the Belchertown school committee. In ATC/Forsythe an employee of a company providing bus service to the city of Tempe, Arizona, met with city officials and offered his dissident union group “as an organized alterna- tive to ATC Tempe either as city employees, or as an alternate service provider.” The employer accused the employee of inter- fering with its contractual relationship with the city and offered the employee an opportunity to explain his activities. The em- ployee refused to respond to the request for information. He was fired for his refusal to cooperate in the company’s investi- gation. The Board held that the employee’s activities were un- protected because the object was the replacement of his em- ployer as Tempe bus contractor by his dissident union group. Other cases in which the Board has reached similar conclu- sions are Kenai Helicopters, 235 NLRB 931, 936 (1978), Asso- ciated Advertising Specialists, Inc., 232 NLRB 50, 53–54 (1977), and North American Dismantling Corp., 341 NLRB 665 (2004). In Kenai Helicopters, the Board found the activities of a helicopter pilot and mechanic unprotected. The two told their employer’s dispatcher that they were going on strike and while doing so would operate as a competitor of their employer, flying tourists around the island of Kauai who otherwise would fly with their employer. In Associated Advertising Specialists, Inc., the employer produced advertising materials for its customers, the principal one of which was Rite-Aid. The alleged discriminatee, using information he had acquired while working for the employer, underbid it for some of Rite-Aid’s business, as a direct com- petitor. In North American Dismantling Corp., an employee told one of his employer’s clients that he could do the job for less than the client was paying his employer. More specifically, the al- leged discriminatee told the client that he “could put some peo- ple together and do this job for you for cash.” Thus, each of these cases is distinguishable from the instant matter by the fact that the discharged employee was attempting to compete directly with his employer. I conclude the principle stated in these cases is limited to situations in which employees attempt to engage in the business of their employer as a com- petitor and does not extend to situations in which employees attempt to prevent a prospective employer from obtaining a contract based on a legitimate fear that this employer will not maintain their wages, hours, and working conditions. More- over, each of these cases rests on the employees’ duty of loy- alty to their employer. At the time, the Belchertown employees wrote to the school committee, they had no such duty. Ameri- can Steel Erectors, Inc., 339 NLRB 1315 (2003). A union and/or employees acting in concert have a legitimate interest in protecting the employment standards that the union has negotiated from unfair competitive advantages that would be enjoyed by an employer whose labor cost package is less than those of employers subjected to the standards imposed by the Union. Petrochem Insulation, Inc., 330 NLRB 47, 49 (1999). A union and/or its members may communicate with third parties to advance such legitimate interests when the communi- cation is not so disloyal, reckless, or maliciously untrue to lose the Act’s protection. Arlington Electric, 332 NLRB 845 (2000). Thus, I find that nine of the discriminatees were acting in accordance with their Section 7 rights in petitioning the Bel- chertown school committee to refrain from awarding its school bus contract to Respondent in view of their reasonable belief that such an award would result in a reduction in their benefits and possibly in the loss of their jobs. I view these letters as a legitimate effort to persuade the school committee not to save money by contracting with an employer for whom they had every reason to believe would not provide them with benefits such as health insurance. On the other hand, I find that Candy Ocasio’s e-mail and Charles Kupras’ letter are unprotected. Other than some very generalized assertions about the quality of Respondent’s bus- ses, neither made any other reference to the wages and working conditions of the school bus drivers. Moreover, it is unclear from these two letters that the writers are concerned with the safety of the drivers, as opposed to the school children. The Board found activities similar to the discriminatees’ let- ters to be protected in Montauk Bus Co., 324 NLRB 1128 (1997), which is indistinguishable from the instant case except for the fact that union officials, rather individual members wrote to the school district. Moreover, in Montauk Bus Co., the school district had already contracted with the employer prior to some of the union’s communications with the school district, whereas in the instant case the Belchertown school committee had not decided whether to accept Five Star’s bid when the discriminatees sent their letters to its members. The facts in Montauk Bus Co. are as follows: the Sachem School District in Long Island, New York, also contracted out most of its school bus services. The drivers, who worked for two different contractors between 1989 and 1995, were repre- sented by a labor organization. In 1995, the School District put its contract out for bids and awarded Montauk Bus Company the home to school transportation contract. As in the instant case, the union contacted Montauk before it was awarded the contract in an attempt to assure that Montauk would hire its DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 60 members, recognize the union, and agree to be bound by the collective-bargaining agreement signed by its predecessor. As in the instant case, Montauk ignored the union’s overture. The union continued to seek recognition and a commitment by Montauk to adhere to the collective-bargaining agreement. However, a union official also wrote to the school district, ask- ing it to award the contract to Montauk’s predecessor. After the contract was awarded, and after the union received what it con- sidered an unsatisfactory response from Montauk, it asked the school district to vacate the award to Montauk. When school started in the fall of 1995, a majority of the employees driving school buses for Montauk were former em- ployees of its predecessor. Montauk continued to refuse to rec- ognize the union. After working 3 days, the union commenced a strike and the union wrote the school district about what it alleged was “abysmal service and total disregard for safety.” The union also passed out flyers disparaging the qualifications of Montauk’s replacement drivers. Then the union wrote an- other letter to the school district alleging that some of Mon- tauk’s buses did not comply with New York State safety and registration requirements. The school district determined that these allegations were baseless. After a week, the union drivers offered to come to work un- conditionally. Montauk refused to recall them. As a result of the strike, the Sachem School District assessed Montauk a $150,000 penalty for nonperformance of its contract. Montauk Bus Company argued that it was entitled not to re- call the strikers because their union was initially trying to get the Sachem School District to accept the bid of its predecessor and then to annul its contract. The judge, who was affirmed by the Board, opined: [T]his hardly represents the type of conflict of interest out- lawed by the Act. It does not demonstrate, and there is no in- dependent evidence to demonstrate that the Union was acting either as an agent of or in conspiracy with Laidlaw [the prede- cessor]. There was, therefore, a legitimate and separate union interest in having the School District retain Laidlaw as the contractor, or failing that, in trying to ensure that any successor contractor would hire all of the employees and assume the terms of the collective bargaining agreement. . . . . Once the contract was won by Montauk, the Union attempted to contact the company to insure that it would hire the former employees and retain their existing wages and benefits. When the Union met with what can only be described as a stall, it tried to enlist the School Board to convince Montauk to live up to a promise to hire all of the Laidlaw employees. These actions also represented a legitimate interest that the Union had in attempting to save jobs and to have those people hired by Montauk not suffer a loss of wages or benefits. [324 NLRB at 1136.] The Board found that Montauk violated Section 8(a)(3) and (1) in refusing to reinstate the strikers. It rejected the argument that the strike was unprotected because the union had a conflict of interest due to its attempt to get the school district to cancel Montauk’s contract and its disparagement of Montauk’s ser- vices. The Board distinguished Kenai Helicopters, supra, on the grounds that the employees in that case “used the circumstances of a strike by their fellow employees to further their own per- sonnel [sic] interests by trying to get the company’s customers to shift work to a company that the two were going to join.” 324 NLRB at 1138 fn. 10. Similarly, the Belchertown employees contacted the school committee only after Five Star had made it clear that it did not intend to recognize the Union or was likely to accord the driv- ers the benefits they enjoyed from First Student. Respondent’s failure to respond to Clifford’s letter, in light of the amount of its bid and 35-year history of union-free operation, would rea- sonably have led the Union and the drivers to conclude that Five Star intended to employ drivers without the benefits ac- corded by First Student and would also raise substantial doubt in the minds of the drivers as to whether Respondent intended to employ them. I find that in collectively petitioning the school district, at least in part regarding their wages, job security, and other terms of their employment, the alleged discriminatees, with the ex- ception of Candy Ocasio and Charles Kupras, were engaging in concerted activities protected by the Act. There is nothing in this record to suggest that the Union or the drivers would have made any effort to deny Five Star the Belchertown contract had Respondent agreed to hire them, recognize the Union, and maintain the drivers’ wages and benefits. Disparagement of Respondent In NLRB v. Electrical Workers Local 1229, 346 U.S. 464 (1953), the Supreme Court upheld a Board ruling denying rein- statement to broadcasting technicians who distributed handbills to the public disparaging the quality of programming by their employer. However, the decision rested in large part on the fact that the handbills made no reference to the union, a labor con- troversy or to collective bargaining.9 Justice Burton, writing for the court, observed, “there is no more elemental cause for discharge of an employee than dis- loyalty to his employer.” However, legions of cases arising under the Act recognize that Section 7 protects many acts con- sidered by employers to be “disloyal.” Indeed, some, if not 9 Respondent, at p. 10 of its brief, contends that the discriminatees’ emails and letters are unprotected because they had never worked for, or even applied for work with Respondent at the time these communi- cations were sent to the school committee. However, the letters were written after the Union asked for assurances that the discriminatees would be retained and that their wages and benefits would be pre- served. Sec. 2(9) of the Act defines “labor dispute” very broadly to include “any controversy concerning the terms, tenure, or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing or seeking to arrange terms or conditions of employment, regardless of whether the dispu- tants stand in the proximate relation of employer and employee.” Re- spondent’s failure to respond to Clifford’s letter of January 21, 2002, created a “labor dispute.” See Fabric Services, 190 NLRB 540 (1971). Mountain Shadows Golf Resort, 338 NLRB 581 (2002), cited by Re- spondent, turns on the fact that the alleged discriminatee’s unprotected flyer made no reference to a labor controversy or collective bargaining, Mountain Shadows Golf Resort, 330 NLRB 1238, 1241 (2000). FIVE STAR TRANSPORTATION, INC. 61 many employers would consider support for a union, striking or any concerted effort that interferes with the ability of the em- ployer to run his business as he or she sees fit, to be disloyal. On the other hand, the evolution of the law makes clear that there are limits to what is protected even in the context of a legitimate dispute over wages, hours, and the terms and condi- tions of employment.10 The Board has held on many occasions that employees may properly engage in communication with a third party in an ef- fort to obtain the third party’s assistance in circumstances where the communication was related to a legitimate, ongoing labor dispute—so long as the communication did not constitute disparagement or vilification of the employer’s product or repu- tation. Moreover, what an employer may regard as unprotected disparagement or vilification is not necessarily sufficient to forfeit an employee’s statutory protection. Thus, in Allied Avia- tion Service Co. of New Jersey, 248 NLRB 229, 232 (1980), the Board opined: In determining whether an employee’s communication to a third party constitutes disparagement of the employer or its product, great care must be taken to distinguish between dis- paragement and the airing of what may be highly sensitive is- sues” absent a malicious motive” an employee’s right to ap- peal to the public is not dependent on the sensitivity of Re- spondent to his choice of forum. In Emarco, Inc., 284 NLRB 832, 833 (1987), the Board found that remarks made by two employees to the general con- tractor of their employer were not so disloyal, reckless, or mali- ciously untrue to forfeit the Act’s protection. In the context of a dispute centering on their employer’s failure to make timely contributions to the union welfare and pension plan, the two employees told the general contractor that, “these people never pay their bills . . . can’t finish the job . . . is no damn good” and “this job is too big for them.” Obviously, remarks such as these would tend to undermine the contractual relationship between the general contractor and Emarco. However, an employee only loses the protection of the Act in the context of a legiti- mate labor dispute, if: (1) he or she tries to divert his em- ployer’s business to another business entity in which he has an interest unrelated to his status as an employee of the employer, ATC/Forsythe & Associates, supra; and/or (2) the employee makes a statement “with the knowledge of its falsity, or with reckless disregard of whether it was true or false.” 10 Although the employees herein did not have a duty to be loyal to Respondent at the time they wrote to the school committee. American Steel Erectors, Inc., 339 NLRB 1315 (2003), the test as to whether their letters are protected is essentially the same as if they did have such a duty. I see no practical difference between the standard applied in American Steel Erectors, whether the remarks were “so flagrant, vio- lent or extreme as to render the individual unfit for further service” (citing Dreis & Krump, 221 NLRB 309, 315 (1975)), and the standard applied to writings and utterances of employees who do owe a duty of loyalty to the maligned employer. Thus, employees do not lose the protection of the Act unless their writings and utterances are mali- ciously false or otherwise reckless. They do not lose the protection of the Act whereas here, their accusations are based on dated information, which appears to be accurate, although missing exculpatory informa- tion offered by Lecrenski at trial. HCA/Portsmouth Regional Hospital, 316 NLRB 919 (1995).11 In Sierra Publishing Co. v. NLRB, 889 F.2d 210, 220 (9th Cir. 1989), Judge Fletcher summarized the state of the law regarding disparagement as follows: In summary, the disloyalty standard is at base a question of whether the employees’ efforts to improve their wages or working conditions through influencing strangers to the labor dispute were pursued in a reasonable manner under the cir- cumstances. Product disparagement unconnected to the labor dispute, breach of important confidences, and threats of vio- lence are clearly unreasonable ways to pursue a labor dispute. On the other hand, suggestions that a company’s treatment of its employees may have an effect upon the quality of the company’s products . . . are not likely to be unreasonable par- ticularly in cases when the addressees of the information are made aware of the fact that a labor dispute is in progress. Childish ridicule may be unreasonable, while heated rhetoric may be quite proper under the circumstances. Each situation must be examined on its own facts, but with an understanding that the law does favor a robust exchange of viewpoints. An employee generally has no obligation to investigate whether information he disseminates to third parties in a labor dispute is true or false, at least if he or she has no reason to believe it is false. KBO, Inc., 315 NLRB 570, 571 fn. 6 (1994). In the instant case, I find that none of the information or con- tentions communicated by the 11 drivers to the Belchertown school committee were made with knowledge of their falsity, or with reckless disregard of the truth. Indeed, many of the unflat- tering contentions were accurate, albeit dated. The only inaccu- rate statement in any of the letters is Donald Caouette’s asser- tion that Five Star’s buses failed to start on a number of days in the winter of 1996, which actually occurred only on one day. I do not deem that so maliciously false or reckless as to deny him the protection of the Act. Cincinnati Suburban Press, 289 NLRB 966, 968 (1988). None of the drivers sought to obtain Respondent’s side of the story with regard to the incidents reported by the Daily Hamp- shire Gazette, or for assertions made to them by Alma Coderre and Lorrie Poulin. However, the Act placed no obligation on them to do so in order to retain the Act’s protection. Although many of their factual assertions and concerns were based on very dated newspaper articles, this was not so reckless as to forfeit the protection of the Act in the context of their labor dispute. 11 Respondent relies on Patterson-Sargent Co., 115 NLRB 1627, 1629 (1956), and its progeny for the proposition that the truth or falsity of the discriminatees’ e-mails and letters has no bearing on whether or not they are protected by Sec. 7. Numerous Board and Court cases have overruled Patterson-Sargent, sub silento. These include cases cited herein such as Allied Aviation Service Co., Inc., supra; Emarco Co., supra; HCA/Portsmouth Regional Hospital, supra, as well as Cin- cinnati Suburban Press, Inc., 289 NLRB 966, 967 (1988); and Sierra Publishing Co., 291 NLRB 540, 545 (1988), enfd. 889 F.2d 210, 218– 219 (9th Cir. 1989). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 62 Some of the Letters Constitute Protected Activity, Even As- suming that Some Do Not All the letters, save Ocasio’s and Kupras’, explicitly concern a legitimate concern of the First Student drivers as to their job security and terms of employment. They differ in the degree to which they disparage Respondent. Neither Steve Kahn nor Terri Nadle disparaged Respondent, nor did either one ask that the school bus contract be rebid. Although, Donald Caouette and Deborah Wenzel disparaged Respondent to some extent, Caouette and Wenzel did not specifically ask that the school bus contract be rebid. Suzanne LeClair, Andrea MacDonald and Pauline Taylor disparaged Respondent and asked that the contract be rebid, however, they indicated that an award to Respondent would be acceptable if it safeguarded their current wages and benefits. In conclusion, I find that Respondent violated Section 8(a)(1) by refusing to hire and refusing to consider for hire Donald Caouette, Patricia Grasso, Steve Kahn, Suzanne LeClair, An- drea MacDonald, Terri Nadle, Caron Rose, Pauline Taylor and Deborah Wenzel for engaging in protected concerted activity by writing to the members of the Belchertown school commit- tee. Respondent Violated Section 8(a)(1) Respondent, by Theresa Lecrenski, violated Section 8(a)(1) in telling Terri Nadle, Caron Rose, and Pauline Taylor that they were not being hired due to their protected communications with the Belchertown School Committee. Lecrenski, in telling discriminatees Nadle, Rose, and Taylor that they were not being hired due to their protected communi- cations, committed a separate, and distinct violation of Section 8(a)(1), as alleged in the complaint. Kunja Knitting Mills, U.S.A., 302 NLRB 545 (1991). Is Five Star a Successor Employer of First Student An employer, such as Respondent, who takes over the union- ized business of another employer, acquires the collective- bargaining obligations of its predecessor if it is a successor employer. For Respondent to be a successor employer, the similarities between its operations and those of First Student must manifest “a substantial continuity between the enter- prises” and a majority of its employees in an appropriate bar- gaining unit must be former bargaining unit employees of the predecessor. The bargaining obligation of a successor em- ployer begins when it has hired a “substantial and representa- tive complement” of its work force. NLRB v. Burns Security Services, 406 U.S. 272 (1972); Fall River Dyeing Corp., 482 U.S. 27 (1987). In determining whether such substantial continuity exits, the Board generally considers whether the business of both em- ployers is essentially the same; whether the employees of the new company are doing the same jobs under the same working conditions under the same supervisors; and whether the new entity has the same production process, produces the same products, and has basically the same body of customers. Re- spondent satisfies all these criteria with respect to First Student, with the exception of the replacement of First Student’s super- visor by Lecrenski. It operated the Belchertown school busses in essentially the same manner as First Student. Five Star is thus a successor of First Student if a majority of Respondent’s employees in its bargaining unit were former members of the First Student bargaining unit on the day Respondent started operating with a “substantial and representative complement” of its work force. This calculation must take into account that nine discrimina- tees would have been hired, absent the discrimination against them, and that the replacements for the seven regular drivers would not have been hired. Thus, absent discrimination, thir- teen of Respondent’s bargaining unit members would have been former First Student bargaining unit members. The more difficult issue is the size of Respondent’s bargaining unit. Five Star, in its brief, contends that its bargaining unit should in- clude the 33 individuals, other than Theresa Lecrenski, whose names appear on the list submitted for approval to the Belcher- town school superintendent prior to September 1, 2003 (R. Exh. 2), and/or a supplemental list submitted on September 9 (R. Exh. 1 and GC Exh. 9).12 The critical date for determining the size of Respondent’s bargaining unit is the morning of August 27, 2003, the first day of school in Belchertown. On that morning, Respondent, as it was required by its contract, operated all 19 school bus routes. Respondent’s contract with the Belchertown School District provides: The contractor shall furnish fully and properly licensed driv- ers to operate any buses or vehicles used in carrying out the transportation services provided under this contract. A list of all persons assigned as regular and substitute drivers must be submitted to the Superintendent of Schools by August 15, of every year of the contract or as changes occur. All drivers must be acceptable to the Superintendent of Schools. . . . . The School Committee, acting through the Superintendent of Schools, reserves the right to accept or reject any and all driv- ers if it is deemed in the best interest of the Town to do so. (GC Exh. 8, p. 6 of the contract specifications, pars. III, A–C.) There was some confusion at trial regarding the first list of drivers that Respondent submitted to the school superintendent. On September 11, 2003, Lecrenski met with a NLRB agent investigating the Union’s charge. She provided a list of ap- proved drivers. (GC Exh. 9.) This is clearly not the first list she provided to the school superintendent. Although the first list is not in the record, I infer that it was a mirror image of the super- intendent’s list of approved drivers as of September 1, 2003. (R. Exh. 2.)13 From this exhibit and from Respondent’s time 12 At hearing, Respondent also asserted that two individuals not on either list, Raymond Hughes and Kim Stitzinger, who started driving busses in Belchertown later in the fall, should be included in the unit. 13 My reasons for so concluding are that R. Exh. 2 includes the names of individuals hired by Respondent on or prior to August 18, 2003, who drove a regular school bus route for Respondent on the morning of August 27, 2003, and who were no longer working for Respondent by September 1, such as Edward Baran and Natalina King. R. Exh. 1 is identical to GC Exh. 9 except for the fact that it has two pages instead of one and that on its face it indicates that it was provided FIVE STAR TRANSPORTATION, INC. 63 sheets it is possible, with the exception of route 14, to deter- mine who drove each school bus route for Five Star on the first morning of school: Drivers on the morning of August 27, 2003 by route # 1. Mary MacIntyre-Gadde (AM route) Kathy Condi, a First Student bargaining unit member, (PM route)14 2. Edward Baran, whose employment ended after one shift. 3. Christine Caney 4. Joan Hilliard, a First Student bargaining unit member. 5. Sandra Lepine 6. Kathy Brady 7. Robin Demetrius 8. Michael Gentile 9. Natalina King, who only worked two days for Five Star.15 10. Diane Stuller, who only worked two days for Five Star. 11. Pamela Bousquet 12. Wilfred Auclair, a First Student bargaining unit member. 13. Raymond Forget 14. Unknown16 15. Christine Abare 16. Amy Randall 17. Darlene White 18. Paul Greene, a First Student bargaining unit member. 19. Tina Stone Considering just the regular route drivers, I conclude that but for Respondent’s refusal to hire the discriminatees, 11 of the 20 regular route drivers on the morning of August 27, 2003 would have been former First Student bargaining unit members. This includes the four First Student drivers who drove bus routes for Respondent on August 27 (Condi, Hilliard, Green, and Auclair) and seven discriminatees who were regular drivers for First Student (Wenzel, Kahn, Rose, Nadle, LeClair, Taylor, and Grasso). Discriminatees Andrea Macdonald and Donald Caou- ette were spare drivers for First Student. I conclude that if the discriminatees had been hired, Respondent would not have hired or transferred the seven employees who replaced them as regular route drivers. The critical issue in this case is how many of the individuals listed as drivers in Respondent’s Exhibit 2 should be included in the bargaining unit. I exclude anyone whose name does not to the superintendent on September 9, 2003. It is evident from the markings on the front of R. Exh. 1 that it is a supplemental list reflect- ing changes in Respondent’s drivers that had occurred since the begin- ning of the school year. 14 This route was intended to be split between MacIntyre-Gaddie and Condi from the outset. This situation differs from those routes on which the original driver was replaced. 15 The timesheets for King, Baran, and Stuller in GC Exh. 20 show that they did not drive in Belchertown after August 28 and their names do not appear on the list of approved drivers, which Respondent sub- mitted to the superintendent on September 9 (GC Exh. 9 and R. Exh. 2). 16 Petrina Williams-Hidalgo apparently did dry runs on route 14 on August 26 and 27 (GC Exh. 20(dd). It is unclear who transported the school children on route 14 that day. Williams-Hidalgo began driving the route regularly on September 2. appear on Respondent’s Exhibit 2 because they had not been approved to drive a Belchertown school bus as of September 1, 2003.17 While Respondent concedes that Lecrenski should not be included there is an issue with regard to most of the other individuals listed on Respondent’s Exhibit 2. Several of these individuals either drove in school districts other than Belcher- town or performed significant nondriving functions for Re- spondent. Some, including four of the regular drivers on the morning of August 27, performed negligible amounts of bar- gaining unit work. An employee should not be included in the bargaining unit solely because he or she appears on Respondent’s original list of drivers. There must be some other indicia of a community of interest with the Belchertown school bus drivers, at or immedi- ately following the beginning of the school year, when Respon- dent began operating with a substantial and representative complement of its work force. The best examples of why the list is not dispositive are Stephanie Meloni and Barbara La- palme, whose names appears on the list, but who did not drive a single school bus run in Belchertown up to the date of the hear- ing. The spare drivers are essentially casual, part-time, or dual- function employees of Respondent. In the context of a repre- sentation proceeding, the Board includes or excludes part-time employees on the basis of their relationship to the job, “whether they perform unit work and whether they have a sufficient regularity of work to give them a community of interest with full-time employees with respect to wages, hours, and other working conditions.” Children’s Hospital of Pittsburgh, 222 NLRB 588, 591 (1976); Arlington Masonry Supply, Inc., 339 NLRB 817 (2003). The standard that the Board generally ap- plies to casual employees in determining whether they have a sufficient community of interest is whether they regularly aver- age 4 hours or more per week for the last quarter prior to the eligibility date. Davison-Paxon Co., 185 NLRB 21, 23–24 (1970).18 The spare drivers, who also work in other localities or have other job functions, are essentially dual-function employees, 17 There is no evidence that Respondent submitted the names of any of these individuals to the superintendent prior to September 9, 2003. On that date, Lecrenski apparently supplemented her original list to account for the fact that some of the people on that list no longer worked for her. On this basis I would exclude from the bargaining unit, Adolph Pipczynski, Curtis Littlefield, and Raymond Hughes (whose name does not appear on either R. Exh. 1 or 2). Additionally, Pipczyn- ski, who drove a regular bus route for Respondent in South Hadley, Massachusetts, never drove a school bus route (as opposed to a charter run) in Belchertown. Hughes could not, pursuant to the contract, drive a school bus in Belchertown until late September since his criminal background check was not complete until then. Curtis Littlefield’s name was not submitted to the superintendent until September 9 al- though he drove in Belchertown prior to that date on September 5. He appears to have alternated between Belchertown and Hadley in Sep- tember, but did not drive a school bus route in Belchertown between October 1 and December 31, 2003. 18 Four hours per week for a quarter amounts to 52 hours. However, a casual employee who worked 52 hours on 7 consecutive days at the beginning of a quarter and then didn’t work at all afterwards might not be included in a bargaining unit under this formula. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 64 Syracuse University, 325 NLRB 162 (1997). As such, the time period in which they performed bargaining work is critical in determining whether or not they should be included in the bar- gaining unit. In the election context, the Board does not deter- mine voter eligibility on the basis of after-the-fact considera- tions, Georgia Pacific Corp., 201 NLRB 831, 832 (1973). However, since there is no other way of determining whether Respondent’s drivers had a community of interest with the employees who regularly worked in Belchertown, I will apply the Davison-Paxon test to the quarter following the com- mencement of the school year. Applying the Davison-Paxon test to those individuals who drove a school bus route on the morning of August 27, I would exclude from the bargaining unit the following individuals, on the basis of the negligible number of hours they worked in fall of 2003: Mary MacIntyre-Gadde—19.5 hours Edward Baran—2.75 hours Diane Stuller—11 hours Natalina King-14.12 hours The spare drivers appearing on Respondent’s original list are the following: Sharie Truehart: At page 17 of her affidavit of September 11, 2003 (GC Exh. 17), which the parties have agreed is to be considered equivalent to her testimony, Lecrenski stated: Sharie Truehart was working for 5-Star, and not working for First Student in Belchertown during the last few months of the 2002–2003 school year. I had prepared to offer her a route, but she did not show up this fall. I called several times and she didn’t call back. Truehart had no employment relationship with Respondent as of September 11, 2003. She had been laid off at the end of the 2002–2003 school year and had not yet been rehired.19 She did not drive in Belchertown until November 2003. On this basis I conclude that she was not a member of the bargaining unit on August 27, 2003. Susan Rousseau: Respondent hired Susan Rousseau in mid- August as the co-coordinator for the Belchertown garage at a salary of $650 per week. Rousseau receives no fringe benefits such as health insurance or paid vacations. Unlike other drivers, Rousseau does not fill out timesheets for the time spent driving a school bus. Theresa Lecrenski introduced Rousseau to the school board as the person to contact at the Belchertown garage. Respon- dent’s contract with the Belchertown school committee requires it to “appoint or assign one supervisor on site to be in charge of the routes within the District’s transportation system.” Rous- seau is the person so designated. However, the fact that she is Respondent’s “supervisor” within the meaning of its contract with the School District does not mean that she is necessarily a supervisor within the meaning of Section 2(11) of the Act. Rousseau’s primary function is to make sure that there is a driver for every route, every run. If the regular driver is un- 19 Five Star drivers are laid off for the summer and collect unem- ployment insurance. They are rehired in the fall. available, she finds a replacement and sometimes drives a school bus route herself. She sometimes selects replacements on the basis of their familiarity with the route in question. Rousseau checks other drivers’ timesheets for accuracy and performs office work when she does not drive. At times she accompanies new drivers to show them their bus route. Section 2(11) of the Act defines “supervisor” as “any indi- vidual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.” A party seeking to exclude an individual from the category of an “employee” has the burden of establishing supervisory authority. The exercise of independent judgment with respect to any one of the factors set forth in Section 2(11) establishes that an individual is a supervisor. However, not all decision-making constitutes the independent judgment necessary to establish that an individual is a statutory supervisor. Similarly, the fact that an individual gives direction to other employees without first checking with a higher authority, does not necessarily make one a supervisor. For example, an individual does not necessar- ily become a supervisor in situations in which his authority to direct employees emanates solely from his skill or experience. Southern Bleachery & Print Works, 115 NLRB 787, 791 (1956), enfd. 257 F.2d 235, 239 (4th Cir. 1958). Moreover, the exercise of supervisory authority on an irregular and sporadic basis is not sufficient to establish supervisory status. Browne of Houston, 280 NLRB 1222, 1225 (1986). Rousseau’s exercise of her limited authority does not entail sufficient independent judgment to make her a supervisor. Moreover, I find that the fact that she is salaried and the regular drivers are hourly is insufficient to exclude Rousseau from the bargaining unit as a spare. However, I find that Respondent has established only that Rousseau drove a school bus route on 2 days, August 28 and September 24 (R. Exh. 9). I give no weight to her testimony that she drove on other days in the fall of 2003, for which there is no documentation. Applying the Davison-Paxon criteria, I find that Rousseau has insufficient community of interest to be considered part of the bargaining unit. Clark Isham: Clark Isham was on Respondent’s original list of approved drivers for the Belchertown School District and also on a list Five Star submitted to the South Hadley School District. Between August 27 and December 31, 2003, Isham drove a school bus route in Belchertown on just one occasion, route 2, on the morning of August 28. Due to the paucity of his contacts with other Belchertown drivers, I deem that Isham had an insufficient community of interests with the Belchertown drivers to be included in the bargaining unit. Judith Marsche: Judy Marsche drove school buses for Re- spondent between August and December 2003. However, she did not drive a school bus route even once in Belchertown dur- ing that time period. Marsche may have driven twice in Bel- chertown between January and April 2004, but was driving regularly in the town of Hatfield. When Christine Caney left FIVE STAR TRANSPORTATION, INC. 65 Respondent’s employ, Donald Lecrenski took over Caney’s route until the Respondent could obtain Marsche’s release from her obligations in Hatfield.20 On these facts I deem that Judy Marsche should be excluded from the bargaining unit under the Davison-Paxon criteria. Stephanie Meloni: Stephanie Meloni did not drive a single school bus route in Belchertown between August 27, 2003, and the hearing in this matter. Thus, there is no evidence on which to conclude that she has any interests similar to those of bar- gaining unit members. She therefore should be excluded from the unit. Donald Lecrenski: Donald Lecrenski, Theresa Lecrenski’s brother-in-law, is the fleet manager for Respondent’s buses. He is responsible for 70 buses at several different locations. On most days, Donald Lecrenski works at Respondent’s garage in Agawam but he has driven school bus routes on a regular basis in Belchertown and did so as early as September. However, I would exclude Donald Lecrenski from the bargaining unit for other reasons. He is a salaried employee who works 12 months a year (6:30 a.m. to 4:30 p.m.) and doesn’t fill out timesheets. Additionally, unlike any bargaining unit employee, Respondent provides Donald Lecrenski with health insurance coverage and paid holidays. I conclude that, given the benefits that Lecrenski is provided, which other unit employees are not offered, that he does not have a sufficient interest in the wages, hours, and terms of employment of unit employees to be included in the bargaining unit. Donald Carter: Although Donald Carter drove in school dis- tricts other than Belchertown, he drove regular bus routes on a sufficiently regular basis and early enough in the school year that he should be included in the bargaining unit. Carter drove routes on August 28 and 29 and on several occasions in Sep- tember. Barbara Lapalme (not to be confused with Sandra Lepine, the regular driver on route 5): Barbara Lapalme did not drive a single school bus route in Belchertown as of the date of the instant hearing. I therefore conclude that she should be ex- cluded from the bargaining unit. Lapalme primarily drove spe- cial needs routes in South Hadley. She may also have driven charters in Belchertown.21 Other individuals on Respondent’s Lists of Drivers Gregory Hansenko: On the list it provided to the School Dis- trict on September 9, 2003, Respondent designated Gregory Hansenko as the regular route driver for route 16. Hansenko is on Respondent’s original list of drivers and in fact drove Bel- 20 Of the 20 regular route drivers who drove on the morning of Au- gust 27, 2003, at least 8 no longer worked for Respondent in Belcher- town by the time of the hearing in this matter in April 2004 (MacIntyre- Gaddie, Barran, Caney, Brady, Demetrius, King, Suller, and Forget). Thus, there were plenty of openings for employees who had not been bargaining unit employees earlier in the school year. 21 I conclude that an employee who drove charter runs and did not regularly drive school bus routes early in the school year is not a mem- ber of the bargaining unit. Only those who regularly drove school bus routes had a sufficient community interest with bargaining unit mem- bers. chertown route 16 the second week of school.22 Respondent’s Belchertown contract requires it to maintain one full-time me- chanic. That individual is Gregory Hansenko. Mechanical work that cannot be performed by Hansenko at Belchertown is per- formed at Respondent’s main garage in Agawam. Hansenko’s terms of employment, however, differ from the other drivers’ in a number of respects. He works from 6:30 a.m. to 5 p.m., while bus route drivers work several hours in the morning and several hours in the afternoon, less than an 8-hour day. Respondent employs Hansenko for 12 months of the year; other drivers are laid off for the summer. He is also salaried and gets a paid vacation in the summer. Additionally, Respondent accords Hansenko paid sick time and on occasion, paid per- sonal days. None of the other Belchertown drivers have such a benefit and these facts are sufficient in my view to exclude Hansenko from the bargaining unit. Due to his significantly different status, I deem Hansenko to have an insufficient com- munity of interest with the other drivers to be included in the bargaining unit. Dlubak Corp., 307 NLRB 1138, 1167–1172 (1992).23 Joseph Marsche: Joseph Marsche, whose name appears on Respondent’s Exhibit 2, began driving route 10 as the regular driver on September 3, 2003. There is no evidence that Joseph Marsche worked as a spare driver in Belchertown. He replaced Diane Stuller as the regular driver on route 10, as Respondent’s Exhibit 1 indicates. Applying the Davison-Paxon criteria, I include Joseph Marsche in the bargaining unit as a regular driver. Bienvenido Torres: Torres appears on Respondent’s Exhibit 2 and took over route 2 a few days after the beginning of the school year as the regular driver. He is a member of the bar- gaining unit under Davison-Paxon as a regular driver. Kim Stitzinger: Stitzinger’s name appears on neither Re- spondent’s Exhibit 1 or 2 and she did not drive a school bus in Belchertown until October 13. I exclude Stitzinger from the unit for these reasons. In conclusion, 23 individuals should be included in Respon- dent’s bargaining unit. The 23 members of the bargaining unit are 20 regular drivers and 3 spare drivers. The 20 regular driv- ers include the 7 discriminatees, the 4 former First Student employees who drove buses for Respondent on August 27, 2003, and the 9 drivers who would have hired for available regular driver positions in the absence of Respondent’s dis- 22 Amy Randall, who drove route 16 on the first day of school, switched to route 9, replacing Natalina King, who only drove the first 2 days. 23 The fact that certain employees are salaried and receive better benefits than hourly employees does not always warrant excluding them from the same bargaining unit as hourly employees, K. G. Knit- ting Mills, 320 NLRB 374 (1995) (a case in which, unlike the instant case, such employees performed exclusively bargaining unit work). However, the totality of the circumstances regarding the wages, hours, and terms of employment of Gregory Hansenko and Donald Lecrenski, convinces me that neither have a sufficient community of interest with hourly employees who exclusively drive the school buses. This is even more evident in the case of Lecrenski than it is in Hansenko’s situation. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 66 criminatory hiring.24 The spare drivers in Respondent’s unit are discriminatees Donald Caouette and Andrea MacDonald, and Five Star em- ployee Donald Carter.25 Thus, but for Respondent’s illegal refusal to hire the discriminatees on August 27, 2003, 13 of the 23 members of the bargaining unit were former members of the First Student bargaining unit and therefore Respondent was obligated to recognize and bargain with the Union as the exclu- sive representative of its bargaining unit employees. SUMMARY OF CONCLUSIONS OF LAW 1. The Respondent, Five Star Transportation, Inc., violated Section 8(a)(1) of the Act by refusing to consider for hire and by refusing the hire Donald Caouette, Patricia Grasso, Steve Kahn, Suzanne LeClair, Andrea MacDonald, Terri Nadle, Caron Rose, Pauline Taylor, and Deborah Wenzel. 2. Respondent, by telling discriminatees Nadle, Rose, and Taylor that they were not being hired due to their protected communications with the school committee, violated Section 8(a)(1) of the Act. 3. Respondent had hired a substantial and representative complement of its work force on the morning of August 27, 2003. 4. On the morning of August 27, 2003, absent its discrimina- tory refusal to hire nine discriminatees, a majority of the mem- bers of Respondent’s bargaining unit, i.e., regular route bus drivers and spare route drivers, would have been members of the bargaining unit of First Student, Inc., the Belchertown school bus contractor prior to Respondent. 5. Respondent is a successor employer to First Student and is thus obligated to recognize and bargain with the Union, which represented First Student’s bargaining unit employees. REMEDY Having found that the Respondent has engaged in certain un- fair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectu- ate the policies of the Act. The Respondent, having discriminatorily refused to hire em- ployees, must offer them employment and make them whole for any loss of earnings and other benefits, computed on a quar- terly basis from the date they would have been hired absent discrimination to the date of a proper offer of employment, less any net interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in New Hori- 24 Although 14 of Respondent’s regular drivers, who were not mem- bers of the First Student bargaining unit, qualify as unit members using the Davison-Paxon criteria, there would have only been nine regular driver positions available on August 27, had Respondent hired the seven discriminatees who were regular drivers. 25 Benvenido Torres, Joseph Marsche, and Petrina Williams-Hidalgo never worked as spare drivers; they each replaced a regular driver who quit on the first or second day of work. Torres replaced Baran as the regular route 2 driver; Marsche replaced Diane Stuller. Williams- Hidalgo was the regular route 14 drivers, although she apparently did not transport students on August 27. GC Exh. 20. On GC Exh. 9 and R. Exh. 1, these three drivers are listed as regular route drivers. The mark- ings on R. Exh. 2 also indicate that these three were never spare drivers for Belchertown. zons for the Retarded, 283 NLRB 1173 (1987). On these findings of fact and conclusions of law and on the entire record, I issue the following recommended26 ORDER The Respondent, Five Star Transportation, Inc., Agawam, Massachusetts, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to hire or consider for hire any employee for engaging in protected concerted activity or otherwise discrimi- nating against any employee for engaging in protected activity. (b) Telling employees that they are not being hired or other- wise being discriminated against due to protected activity. (c) In any like or related manner interfering with, restraining, 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 effec- tuate the policies of the Act. (a) On request, bargain with the Union as the exclusive rep- resentative of the employees in an appropriate bargaining unit consisting of regular school bus route drivers and spare school bus route drivers, concerning terms and conditions of employ- ment, and if an understanding is reached, embody the under- standing in a signed agreement. (b) Within 14 days from the date of the Board’s Order, offer Donald Caouette, Patricia Grasso, Steve Kahn, Suzanne Le- Clair, Andrea MacDonald, Terri Nadle, Caron Rose, Pauline Taylor, and Deborah Wenzel full reinstatement to their former jobs, or if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed. (c) Make Donald Caouette, Patricia Grasso, Steve Kahn, Suzanne LeClair, Andrea MacDonald, Terri Nadle, Caron Rose, Pauline Taylor, and Deborah Wenzel whole for any loss of earnings and other benefits suffered as a result of the dis- crimination against them, in the manner set forth in the remedy section of the Decision. (d) Within 14 days from the date of the Board’s Order, re- move from its files any reference to the unlawful discrimination in hiring, and within 3 days thereafter notify the employees in writing that this has been done and that the circumstances sur- rounding this discrimination will not be used against them in any way. (e) Preserve and, within 14 days of a request, or such addi- tional 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 re- cords, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. (f) Within 14 days after service by the Region, post at its 26 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recom- mended 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. FIVE STAR TRANSPORTATION, INC. 67 Belchertown, Massachusetts facility copies of the attached Notice marked “Appendix.”27 Copies of the notice, on forms provided by the Regional Director for Region 1, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be 27 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.” taken by the Respondent to ensure that the notices are not al- tered, 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 August 27, 2003. (g) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply.