R.C.L. Transit, Inc.

R.C.L. TRANSIT R.C.L. Transit, Inc. and Local 810, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, AFL-CIO. Cases 29-CA-13638 and 29-CA-13806 August 7, 1989 DECISION AND ORDER BY MEMBERS CRACRAFT, HIGGINS, AND DEVANEY On May 18, 1989, Administrative Law Judge James F. Morton issued the attached decision. The Charging Party filed exceptions and a sup- porting brief. The Respondent filed an answering brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge' s rulings, findings, I and conclusions and to adopt the recommended Order. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. i The judge erroneously found that the Union filed an unfair labor practice charge in Case 29-CA-13621 on August 3, 1988 The correct date is July 22, 1988 He also erroneously found that the Respondent's attorney wrote employee Eugene Giordano a certified letter on Septem- ber 5, 1988. The correct date is July 29, 1988 . Further, the record indi- cates that the Respondent 's president wrote three certified letters to Giordano after August 12, 1988. The judge had referred to four certified letters. None of these minor factual errors affect the result in this case. Kevin R. Kitchen, Esq., for the General Counsel. Stuart M. Kirshenbaum, Esq. (Pollack & Kirshenbaum, P.C.), of Valley Stream, New York, for R.C.L. Tran- sit, Inc. Sidney L. Meyer, Esq., of New York City, for Local 810, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO. DECISION STATEMENT OF THE CASE JAMES F. MORTON, Administrative Law Judge. After the hearing in these consolidated cases closed, General Counsel filed a motion to withdraw the complaint. Local 810, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America , AFL-CIO (Union) submitted a brief in opposition to that motion. R.C.L. Transit, Inc. (Respondent) sent a letter in support of the motion. General Counsel's motion is predicated on the asser- tion that "General Counsel learned that the same issues raised (in the instant cases) have been litigated and decid- ed in Mineola Ford Sales Ltd., 258 NLRB 406 (1981), 9 wherein the Board held that the letter in issue did not constitute a violation of the Act." The letter General Counsel refers to is discussed below. The Union contends that General Counsel has misread Mineola Ford. To consider these contentions, it is neces- sary to set out the following FINDINGS OF FACT 1. THE ALLEGATIONS The complaint in these consolidated cases alleges that Respondent has committed unfair labor practices within the meaning of Section 8(a)(1) and (4) of the National Labor Relations Act (the Act) by having sent coercive letters to a discharged employee who had been named in an unfair labor practice charge in another case. II. JURISDICTION AND LABOR ORGANIZATION Respondent operates a charter bus service and receives in excess of $250,000 in gross revenues annually from the City of New York for such services. Judicial notice may be taken of the fact that the operations of the City of New York exceed the Board's inflow or outflow stand- ards; further, the value of Respondent's services to the City of New York may be considered for jurisdictional purposes. See Electrical Workers IBEW Local 46 (Pac, Inc.), 273 NLRB 1357, 1358 (1985). There is no evidence that the City of New York possesses authority over Re- spondent's operations such as would impinge on either its day-to-day operations or its ultimate control of labor re- lations. Cf. Rustman Bus Co., 282 NLRB 152 (1986), I therefore find that it will promote the policies of the Act for the Board to assert jurisdiction in this case. The Union is a labor organization as defined in the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background and Relevant Facts All dates hereafter are for 1988 unless stated other- wise. Respondent employs bus drivers and they are un- represented for purposes of collective bargaining. On August 3, the Union filed an unfair labor practice charge in Case 29-CA-13621 alleging, among other things, that Respondent had on July 20 unlawfully dis- charged one of its drivers, Eugene (Robert) Giordano. On September 5, Respondent's attorney wrote Giordano a certified letter which read: As you know, there is presently pending an NLRB proceeding regarding your lay-off. In that proceeding, there may be a claim for back-pay on your behalf. In order to properly evaluate any pos- sible back-pay liability in the event that it becomes necessary, you are requested , beginning immediate- ly, to file with the undersigned, weekly, information relating to your efforts regarding your search for employment and such information should include: a) Time, date and place where application was made; 296 NLRB No. 2 10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD b) Identity of firm and address and person to whom application was made; c) Details of position applied for; d) Method by which "lead" was obtained includ- ing copies of all ads answered; e) Result of such application; f) Names and addresses of places where you were or are employed; g) Hours worked (days and time); h) Amount of earnings including wages, unem- ployment insurance, disability insurance, support or alimony, etc. In the event that you should fail to comply with this request, your failure to do so will be brought to the attention of the Agency handling any possible back-pay proceeding and a demand will be made at that time for you to produce this information. On August 3, the Union filed the charge in Case 29- CA-13638 alleging that Respondent engaged in an unfair labor pratice within the meaning of Section 8(a)(1) of the Act by having sent that letter to Giordano. On August 12, Respondent's president wrote a certi- fied letter to Giordano which read: As you have previously been advised, there is presently pending an NLRB proceeding regarding your discharge. In that proceeding, there may be a claim for backpay on your behalf. You are obligat- ed under the existing status of the law to actively and earnestly seek employment . In connection therewith, you are hereby advised that the follow- ing newspaper ads for work have appeared: [Photostatic copies of seven newspaper adver- tisements for drivers, including three seeking school bus driver job applicants] After the completion of each application or re- sponse to the foregoing, you are to advise the un- dersigned as to the time, place and identity of the person to whom your response was made. Should your response to the foregoing be in writing, a copy of said response is to be immediately forwarded to us. In the event you fail to comply with this request, your failure to do so will be brought to the atten- tion of the Judge handling any backpay proceeding and a demand will be made at that time for a find- ing that you have not sought employment. This letter of August 12 indicates that a copy of it was sent to the Board's office at Region 29 and another copy to Respondent's attorney. Respondent's president wrote four more letters to Giordano via certified mail, all identical to the above, except that the photostatic copies of the newspaper ads varied. Thus, on August 19, photostatic copies of 13 ads were inserted, including 11 for school bus drivers; on August 26, there were 15 ads inserted , 9 of which were for school bus drivers; and on September 9, there were 5 school bus driver ads in the insert. On November 25, the Union filed the unfair labor practice charge in Case 29-CA-13806 alleging that Re- spondent, since July 25, has committed unfair labor prac- tices within the meaning of Section 8(a)(1) and (4) of the Act in intimidating Giordano by writing numerous let- ters threatening and retaliating against him because an unfair labor practice charge had been filed in his behalf with the Board. On November 29, the General Counsel issued an order consolidating cases 29-CA-13621, 29-CA-13638, and 29-CA- 13806 alleging violations of Section 8(a)(1), (3), and (4) of the Act which included Giordano' s alleged unlawful discharge, allegations of independent coercive conduct and an allegation that the five letters sent Gior- dano were violative of Section 8(a)(1) and (4) of the Act. At the hearing before me, the parties reached a non- Board adjustment as to Giordano's discharge and as to all other allegations, excepting the allegation in Cases 29-CA-13638 and 29-CA- 13806 that the Respondent, by writing Giordano, violated Section 8(a)(1) and (4). Based on the adjustment, I approved the Union's request to withdraw its charge in Case 29 -CA-13621 and the Gen- eral Counsel's request to withdraw the allegations of the complaint that was issued in that case. B. Analysis . Mineola Ford, supra, held that the respondent there did not unlawfully interrogate an employee in violation of Section 8(a)(1) of the Act, by having sent him a letter substantially identical to those sent Giordano in the in- stant case. The Union now asserts that Respondent here has violated , as alleged in the complaint, Section 8(a)(1) and (4) of the Act by having sent Giordano letters in order to discourage him from cooperating with the Board's Regional Office in its investigation of the merits of the underlying unfair labor practice charges. It is well settled that I am bound by Board precedent. The Board has held, in Mineola Ford, that the letter there did not constitute interference with or restraint or coercion of employee rights under Section 7 of the Act. As essentially the same correspondence is involved in the instant case, I must draw the same conclusion . In sub- stance, the Union would have me reconsider the lawful- ness of the types of letters sent in Mineola Ford, based on the theory framed in the complaint . That is a matter beyond my province. CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization as defined in Sec- tion 2(5) of the Act. 3. Respondent did not engage in any unfair labor prac- tices alleged in the complaint. R.C.L. TRANSIT I i On these findings of fact and conclusions of law and on the entire record , I issue the following recommend- ed' ORDER The complaint is dismissed. I If no exceptions are filed as provided by Sec . 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Board and all objections to them shall be deemed waived for all pur- Order shall, as provided in Sec. 102 48 of the Rules, be adopted by the poses.