MV Public Transportation

MV PUBLIC TRANSPORTATION 867 MV Public Transportation, Inc. and John D. Russell and Local 1181-1061, Amalgamated Transit Un- ion, AFL–CIO and Eric Baumwoll Local 707, International Brotherhood of Teamsters and John D. Russell. Cases 29–CA–29530, 29– CA–29544, 29–CA–29619, 29–CA–29760, and 29–CB–13981 March 22, 2011 DECISION AND ORDER BY MEMBERS BECKER, PEARCE, AND HAYES On June 7, 2010, Administrative Law Judge Michael A. Rosas issued the attached decision. Respondents MV Public Transportation and Local 707, International Brotherhood of Teamsters (Local 707), each filed excep- tions1 and a supporting brief, the General Counsel and Local 1181–1061, Amalgamated Transit Union, AFL– CIO (Local 1181), each filed answering briefs, and Re- spondent MV Public Transportation filed a reply brief. Local 1181 filed cross-exceptions and a supporting brief, Respondent MV Public Transportation filed an answer- ing brief, and Local 1181 filed a reply brief. Finally, the General Counsel filed limited exceptions. The National Labor Relations Board has delegated its authority in this matter to a three-member panel. The Board has considered the decision and record in light of the exceptions and briefs and has decided to af- firm the judge’s rulings, findings,2 and conclusions as 1 Respondent MV Public Transportation does not except to the judge’s finding that it violated Sec. 8(a)(2) and (1) of the Act by direct- ing and urging its employees and applicants for employment, as a con- dition of employment, to sign cards authorizing Local 707 to represent them or have dues for Local 707 deducted from their salary. It also does not except to the judge’s finding that it violated Sec. 8(a)(1) of the Act by: (1) photographing employees as they engaged in lawful union activity; (2) directing an employee to retrieve her signed authorization card from Local 726, International Union of Journeyman and Allied Trades (Local 726), confiscating it, and ripping it up; and (3) threaten- ing an employee with discharge because he supported Local 1181 and prohibiting him from speaking about Local 1181. 2 The Respondents have excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an adminis- trative law judge’s credibility resolutions unless the clear preponder- ance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. The Respondents assert that the judge’s rulings, findings, and con- clusions demonstrate bias and prejudice. On careful examination of the entire record, we are satisfied that the Respondents’ contentions are without merit. In affirming the judge’s rejection of the Respondents’ 10(b) defense, we agree with his finding that the 10(b) period began on or after Octo- ber 5, 2008, when employees first learned of Local 707’s representative status. Because the charge was filed on March 31, 2009, less than 6 months after October 5, 2008, the Respondents’ 10(b) defense fails. modified, to modify his remedy,3 and to adopt the rec- ommended Order, as modified and set forth in full be- low.4 AMENDED CONCLUSIONS OF LAW Substitute the following as new Conclusions of Law 5 and 75 Consequently, we find it unnecessary to pass on the judge’s alternative basis for rejecting the 10(b) defense. We correct the judge’s inadvertent error in stating that Respondent MV Public Transportation’s “ramp-up” chart listed 11 service vehicles in operation on October 1, 2008. The chart actually lists 8 service vehicles in operation on that date. In finding that Respondent MV Public Transportation prematurely recognized Respondent Local 707, the judge applied the well- established two-prong test articulated in Hilton Inn Albany, 270 NLRB 1364 (1984), which requires that at the time of recognition the employ- er must: (1) employ a substantial and representative complement of its projected work force; and (2) be engaged in normal business opera- tions. We agree with the judge’s findings that the Respondent did not satisfy either prong of the test. Member Becker would no longer apply the “normal business opera- tions” prong of this test. As explained by then-Member Liebman in her dissent in Elmhurst Care Center, 345 NLRB 1176, 1179–1180 (2005), the Board no longer applies that prong in determining whether a con- tract will bar an election. See General Extrusion, 121 NLRB 1165, 1167 (1958). So long as a representative complement of employees has been hired, absent a bar resting on their prior choice, employees should be free to decide if they wish to be represented and when they wish to make that decision. If those employees wish to wait until their employ- er commences normal business operations, they are free to do so. But that choice should be left to employees and not taken from them by the Board. Continued application of the “normal business operations” prong deprives employees of this element of a free choice and is incon- sistent not only with General Extrusion, but with the development of Board law in other areas as well. See Management Training Corp., 317 NLRB 1355 (1995); Midland National Life Insurance, 263 NLRB 127 (1982). Member Becker would therefore abandon that prong of the test. Because the Respondent-Employer failed to satisfy the first, “repre- sentative complement” prong of the test, Member Pearce does not need to address the continued viability of the second prong in affirming the judge’s conclusion that the recognition of Respondent Local 707 was premature. Member Hayes adheres to the well-established Hilton Inn Albany test, as reaffirmed in Elmhurst Care Center, and would therefore affirm the judge’s finding of unlawful premature recognition under either prong of that test. 3 In accordance with our decision in Kentucky River Medical Center, 356 NLRB 6 (2010), we modify the judge’s remedy by requiring that backpay and other monetary awards shall be paid with interest com- pounded on a daily basis. We have also modified the remedy to reflect the Board’s usual remedial provisions. 4 We shall modify the judge’s recommended Order to provide for the posting of the notice in accord with J. Picini Flooring, 356 NLRB 11 (2010). For the reasons stated in his dissenting opinion in J. Picini Flooring, Member Hayes would not require electronic distribution of the notice. We have also modified the judge’s recommended Order to more fully reflect the violations found and to comport with the Board’s usual remedial provisions. We shall also substitute a new “Notice to Employees” as well as a new “Notice to Members,” both of which will reflect the Board’s modifications to the Order. 356 NLRB No. 116 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 868 “5. By executing a collective-bargaining agreement with Local 707 on December 12, 2008, which agreement contained a union-security clause, notwithstanding the fact that Local 707 did not represent an uncoerced major- ity of the Company’s employees, the Company violated Section 8(a)(1), (2), and (3) of the Act.” “7. By photographing employees as they engaged in lawful union activity; directing an employee to retrieve her signed authorization card from Local 726, confiscat- ing it, and ripping it up; and threatening an employee with discharge because he supported Local 1181 and prohibiting him from speaking about Local 1181, the Company violated Section 8(a)(1) of the Act.” AMENDED REMEDY Having found that Respondent MV Public Transporta- tion has engaged in unfair labor practices within the meaning of Section 8(a)(1), (2), and (3) of the Act and that Respondent Local 707 has engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) and (2), we shall order that each Respondent cease and desist and take certain affirmative action to effectuate the poli- cies of the Act. Respondent MV Public Transportation will be ordered to withdraw recognition from Local 707 and the latter will be ordered to cease accepting recognition from the former unless certified by the Board. Both Respondents will be ordered to cease giving effect to their December 12, 2008 collective-bargaining agreement, including all renewals, extensions, and modifications, and to cancel it entirely. The Respondents will also be ordered jointly and severally to reimburse all present and former em- ployees for all initiation fees, dues, and other moneys paid by them or withheld from them pursuant to the De- cember 12, 2008 collective-bargaining agreement, with interest at the rate prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010). However, reimbursement shall not extend to those employees who voluntarily joined and became members of Local 707 prior to December 12, 2008. See Elmhurst Care Center, 345 NLRB 1176, 1185 (2005). 5 We have amended Conclusion of Law 5 to correctly reflect, con- sistent with the judge’s findings, that Respondent MV Public Transpor- tation executed its collective-bargaining agreement with Local 707 on December 12, 2008, not September 12, 2008. We have amended Con- clusion of Law 7 to correctly reflect, consistent with the judge’s find- ings, that Respondent MV Public Transportation violated Sec. 8(a)(1) of the Act by directing an employee to retrieve her signed authorization card from Local 726, not Local 1181. ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge as modified and set forth in full below and orders that: A. Respondent MV Public Transportation, Inc., Staten Island, New York, its officers, agents, successors, and assigns shall 1. Cease and desist from (a) Recognizing Local 707 as the exclusive representa- tive of its employees for the purpose of collective bar- gaining unless and until Local 707 is certified by the Board as the collective-bargaining representative of such employees pursuant to Section 9(c) of the Act. (b) Maintaining or giving any effect to its collective- bargaining agreement with Local 707 entered into on December 12, 2008, or any renewal, extension, or modi- fication thereof unless and until Local 707 is certified by the Board as the collective-bargaining representative of such employees; provided however that nothing in this Order shall require any changes in wages or other terms and conditions of employment that may have been estab- lished pursuant to the collective-bargaining agreement. (c) Directing and urging its employees or applicants for employment that, as a condition of employment, they have to sign cards authorizing Local 707 to represent them or have dues for Local 707 deducted from their salary. (d) Photographing employees as they engage in lawful union activity, prohibiting employees from signing au- thorization cards on behalf of a union, prohibiting em- ployees from speaking about a union, and threatening employees with discharge for speaking in support of a union. (e) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Withdraw and withhold all recognition from Local 707 as the collective-bargaining representative of its em- ployees unless and until Local 707 has been duly certi- fied by the Board as the exclusive representative of such employees. (b) Jointly and severally with Local 707 reimburse with interest all present and former employees for all initiation fees, dues, and other moneys paid by them or withheld from them pursuant to the terms of the dues- checkoff and union-security clauses in the December 12, 2008 collective-bargaining agreement in the manner set forth in the remedy section of this Decision and Order. (c) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for MV PUBLIC TRANSPORTATION 869 good cause shown, provide at a reasonable place desig- nated by the Board or its agents, all payroll records, so- cial security payment records, timecards, personnel rec- ords and reports, and all other records, including an elec- tronic copy of such records if stored in electronic form, necessary to analyze the amount of reimbursement due under the terms of this Order. (d) Within 14 days after service by the Region, post at its Staten Island, New York facility copies of the at- tached notice marked “Appendix A.”6 Copies of the notice, on forms provided by the Regional Director for Region 29, after being signed by Respondent MV Public Transportation’s authorized representative, shall be post- ed by Respondent MV Public Transportation and main- tained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- tomarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if Respondent MV Public Transportation customarily communicates with its em- ployees by such means. Reasonable steps shall be taken to ensure that the notices are not altered, defaced, or cov- ered by any other material. In the event that, during the pendency of these proceedings, Respondent MV Public Transportation has gone out of business or closed the facility involved in these proceedings, Respondent MV Public Transportation shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by Respondent MV Public Transportation at any time since September 12, 2008. (e) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that Respondent MV Public Transpor- tation has taken to comply. B. Respondent Local 707, International Brotherhood of Teamsters, its officers, agents, and representatives, shall 1. Cease and desist from (a) Accepting recognition from and executing a collec- tive-bargaining agreement with MV Public Transporta- tion at a time when it did not employ a representative number of its ultimate complement of unit employees and before it was engaged in normal business operations. 6 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” (b) Giving effect to its December 12, 2008 collective- bargaining agreement with MV Public Transportation or to any extension, renewal, or modification thereof unless and until Respondent Local 707 is certified by the Board as the collective-bargaining representative of such em- ployees. (c) In any like or related manner restraining or coerc- ing employees in the exercise of the rights guaranteed them by Section 7 of the Act except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Jointly and severally with MV Public Transporta- tion reimburse with interest all present and former em- ployees for all initiation fees, dues, and other moneys paid by them or withheld from them pursuant to the terms of the dues-checkoff and union-security clauses in the December 12, 2008 collective-bargaining agreement in the manner set forth in the remedy section of this De- cision and Order. (b) Post at its business office and other places where notices to its members are customarily posted copies of the attached notice marked “Appendix B.”7 Copies of the notice, on forms provided by the Regional Director for Region 29, after being signed by Respondent Local 707’s authorized representative, shall be posted by Re- spondent Local 707 and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. In addition to physical posting of paper notices, notices shall be dis- tributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if Respondent Local 707 customarily communicates with its members by such means. Reasonable steps shall be taken to ensure that the notices are not altered, defaced, or covered by any other material. (c) Furnish the Regional Director with signed copies of the notice for posting by MV Public Transportation where notices to all employees are customarily posted. Copies of the notice, to be furnished by the Regional Director, shall be signed by Respondent Local 707 and forthwith returned to the Regional Director. (d) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place desig- nated by the Board or its agents, all dues remittance re- ports submitted by MV, and all other records, including an electronic copy of such records if stored in electronic 7 See fn. 6, supra. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 870 form, necessary to analyze the amount of reimbursement due under the terms of this Order. (e) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that Respondent Local 707 has taken to comply. APPENDIX A NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT recognize or contract with Local 707, In- ternational Brotherhood of Teamsters as the bargaining representative of our employees, until it has been certi- fied as such representative by the National Labor Rela- tions Board. WE WILL NOT maintain or give effect to our December 12, 2008 contract with Local 707 or to any renewal, ex- tension, or modification thereof, unless and until Local 707 is certified by the Board as the collective-bargaining representative of our employees; but we are not required to make any changes in wages or other terms and condi- tions of employment that may have been established pur- suant to the contract. WE WILL NOT direct or urge our employees or appli- cants for employment, as a condition of employment, to sign cards authorizing Local 707 to represent them or have dues for Local 707 deducted from their salary. WE WILL NOT photograph employees as they engage in lawful union activity, prohibit employees from signing authorization cards on behalf of a union, threaten em- ployees with discharge for supporting a union, or prohib- it employees from speaking about a union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. WE WILL withdraw and withhold all recognition from Local 707 as the collective-bargaining representative of our employees. WE WILL, jointly and severally with Local 707, reim- burse, with interest, all our present and former employees for all initiation fees and dues paid by them or withheld from them pursuant to the dues-checkoff and union- security clauses in the December 12, 2008 contract. However, reimbursement will not extend to those em- ployees who voluntarily joined Local 707 prior to De- cember 12, 2008. MV PUBLIC TRANSPORTATION, INC. APPENDIX B NOTICE TO MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain on your behalf with your employer Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT act as the exclusive bargaining repre- sentative of any employees of MV Public Transportation, Inc. unless and until we have demonstrated our majority status and have been certified by the Board. WE WILL NOT maintain or give effect to the December 12, 2008 contract between MV Public Transportation, Inc. and us or to any renewal, extension, or modification thereof. WE WILL NOT in any like or related manner restrain or coerce the employees of MV Public Transportation, Inc. in the exercise of the rights listed above, except to the extent that such rights may be affected by an agreement authorized in Section 8(a)(3) of the Act. WE WILL, jointly and severally with MV Public Trans- portation, Inc., reimburse, with interest, all present and former employees of MV Public Transportation, Inc. for all initiation fees and dues paid by them or withheld from them pursuant to dues-checkoff and union-security clauses in the December 12, 2008 contract. However, MV PUBLIC TRANSPORTATION 871 reimbursement will not extend to those employees who voluntarily joined Local 707 prior to December 12, 2008. LOCAL 707, INTERNATIONAL BROTHERHOOD OF TEAMSTERS Nancy Lipin, Esq., for the General Counsel. H. Tor Christensen, Esq. (Littler Mendelson P.C.), of Washing- ton, D.C., for the Respondent MV Public Transportation, Inc. George Kirschenbaum, Esq. (Cary Kane, LLP), of New York, New York, for the Respondent Local 707, International Brotherhood of Teamsters. Richard Brook, Esq. (Meyer, Suozzi, English & Klein, P.C.), of New York, New York, for the Charging Party Local 1181- 1061 Amalgamated Transit Union, AFL–CIO. DECISION STATEMENT OF THE CASE MICHAEL A. ROSAS, Administrative Law Judge. This case was tried in Brooklyn, New York, on December 8–11, 16–17, 2009, and January 19, 2010. The charge in Cases 29–CA– 29530 and 29–CB–13981 were filed March 31, 2009, the charge in Case 29–CA–29760 was filed August 7, 2009, the charge and first amended charge in Case 29–CA–29544 were filed on April 9 and June 9, 2009, respectively, and the charge in Case 29–CA–29619 was filed on May 22, 2009. The com- plaint issued September 30, 2009.1 The complaint alleges that MV Public Transportation, Inc. (the Company) violated Section 8(a)(1), (2), and (3) as follows: (1) on or about September 12, 2008, by granting recognition to Respondent Local 707, International Brotherhood of Teamsters (Local 707) as the exclusive collective-bargaining representa- tive of all drivers employed by the Company at its Staten Is- land, New York facilities; (2) on or about October 20, 2008, by conditioning employment on employees agreeing to sign au- thorization cards on behalf of Local 707; (3) on or about De- cember 12, 2008, by entering into, and since then maintaining and enforcing, a collective-bargaining agreement, which in- cludes union-security and checkoff provisions, with Local 707 on behalf of the Company’s drivers, mechanics, and utility workers. The complaint also alleges complicity on the part of Local 707, who violated Section 8(b)(1)(A) and 8(b)(2) by accepting such recognition at a time when the Company did not employ a representative segment of the ultimate employee complement and was not yet engaged in its normal operations of providing paratransit services, and then entering into, main- taining, and enforcing the aforementioned collective-bargaining agreement. The complaint further alleges that the Company violated Section 8(a)(1) as follows: (1) in or around February by threat- ening employees with job loss unless they signed a dues- checkoff on behalf of Local 707; (2) by engaging in surveil- lance of employees’ union activities; (3) directing employees 1 Unless otherwise indicated, all dates refer to the period between August 2008 and July 2009. who signed authorization cards for another union to return those cards; (4) threatening employees with reprisals because of their activities on behalf of another union; (5) spat at employees who were engaged in activities supporting another union; and, on or about April 30, by directing employees not to speak about Local 1181 at its facility and threatening them with discharge if they disobeyed that directive. The Company and Local 707 deny the material allegations in the complaint. In addition, the Company contends that the claim is time-barred pursuant to Section 10(b) because the recognition agreement was signed on September 12 and the charge was not filed until March 31. In a bizarre twist of events, the Company’s general manager responded to the General Counsel’s subpoena duces tecum (B- 562546) for the Company’s payroll records by producing a summary of its database information and then disavowing its accuracy.2 The General Counsel responded with another sub- poena duces tecum requesting additional documents to clarify the extent of the Company’s work force during the term of the Contract. I partially granted the Company’s petition to revoke, but required it to produce the union dues remittance form and Form I-9 (Department of Homeland Security, Employment Eligibility Verification) for every employee reflected in the payroll information produced.3 Forms I-9 would have been reliable records, within a 3-day period, as to employee hire dates. The applicable period was from the commencement of operations through July 31.4 The Company produced the re- mittance forms, but refused to produce the Forms I-9, citing unspecified problems or complications if it did—even after I assured the Company that such documents would be placed under seal. The General Counsel then requested an adjourn- ment in order to seek enforcement of the subpoena in United States district court. I denied that request in light of the availa- bility of alternative procedural remedies, including sanctions pursuant to Banyon Mills Inc., 146 NLRB 611, 613 (1964). See also McAllister Bros., Inc., 341 NLRB 394, 396 (2004).5 The General Counsel moved for such sanctions and I grant her ap- plication in the following respects: the payroll information produced is deemed accurate as to hiring dates, hours worked, job classifications, and all other information contained therein, except where reliable evidence indicates otherwise; and, to the extent that any such information is uncertain, an inference will be drawn in favor of the General Counsel. On the entire record,6 including my observation of the de- meanor of the witnesses, and after considering the briefs filed by the General Counsel, the Company and Local 1181, I make the following 2 The credibility of Quinto Rapacioli, the Company’s general man- ager and the person upon whom the subpoena was served, was neces- sarily diminished as a result of his production of summary payroll information and then disavowing it as inaccurate. (Tr. 349–350, 447, 475–477.) 3 ALJ Exhs. 1–4; GC Exhs. 30–32. 4 Tr. 488, 492. 5 Tr. 775. 6 The General Counsel’s unopposed motion to correct the transcript, dated April 1, 2010, is granted and received in evidence as GC Exh. 37. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 872 FINDINGS OF FACT I. JURISDICTION The Company, a corporation, a domestic corporation with its principal office and place of business in Staten Island, New York, has been engaged in providing paratransit services within New York, New York, where it annually derives gross annual revenues in excess of $250,000, and purchases and receives at its Staten Island facilities good and materials valued in excess of $5000 directly from suppliers located outside the State of New York. The Company admits and I find that it is an em- ployer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that Locals 707 and 1181 are labor organizations within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Company’s Operations Based in Fairfield, California, the Company is the largest provider of paratransit services in the United States.7 Since 2001, the Company has provided paratransit services in Brook- lyn, New York, for the New York City Transit Authority (Transit Authority). That operation has grown to encompass 310 routes daily with 251 vehicles and 450 transit profession- als.8 Since August 2008, the Company has also provided para- transit services to passengers in Staten Island pursuant to a Transit Authority contract.9 The Company’s general manager is Quinto Rapacioli. Dur- ing the relevant period of time, John Duncan served as opera- tions manager and Ronald McElhose10 was employed as a driv- ing instructor. All acted as the Company’s statutory supervisors and/or agents. In late August, the Company began training drivers for its Staten Island operations at 125 Lake Avenue (Lake Avenue facility). Shortly thereafter, it opened offices at 900 South Avenue (South Avenue facility). From September through the spring of 2009, the Company utilized a trailer located at 40 LaSalle Street (LaSalle Street facility) to house a drivers’ room, dispatch room, and maintenance area. The Company’s vehicles were parked in a yard outside this trailer. After drivers com- pleted training, they reported to work each day at the 40 LaSalle Street facility. In the spring of 2009, the Company moved its entire operation to a larger facility at 1957 Richmond Terrace. B. The Company’s Bid for the Staten Island Access-A-Ride Contract In 2007, the Transit Authority sought bids from paratransit providers to provide “Access-A-Ride Paratransit Transportation Service” in Staten Island, New York. The Company and other companies bid for the work, including the incumbent service provider, RJR Paratransit. The Company’s bid stated, in perti- nent part: 7 GC Exh. 23. 8 GC Exh. 23. 9 GC Exh. 20. 10 McElhose was referred to in the testimony by his nickname, “Mack.” [The Company] is proposing to operate 300 vehicles for the Access-A-Ride Service. Our proposed facilities are sufficient to accommodate this size for a fleet, however, we do not ex- pect to start at this level of service. [The Company] is proposing to start with an approximate 150 vehicle fleet for this project. Our startup plan shows that we can be fully operation [sic] with this starting fleet in approxi- mately three months and we could begin partial operations even earlier. Once we have stabilized the startup operations, we would then look to start expanding the operation. We believe that a 50 vehicle per year expansion will allow us to add the additional service on the street without impacting existing operations. It is critical that the passengers are only positively affected as the expansions are taking place. This expansion plan offers ample time to proper hiring and training, thus ensuring a safe, quality operation. This expansion plan closely mirrors the [Transit Authority’s] expected growth in the Access-A-Ride service over the next few years. By following this plan, [the Company] would be at the full 300 vehicle operation limit in a three to four year peri- od.11 The Company’s proposal included a price summary for the initial 150 vehicles and the expansion of 150 more for a total estimated first year amount of $21,525,085.12 The vehicles were to be serviced and stored at the Company’s Lake Avenue facility and operated by 237 drivers. The Company also repre- sented that the Lake Avenue facility was capable of supporting such a fleet.13 C. The Company Is Awarded Contract and Prepares to Operate By letter, dated August 29, the Transit Authority congratu- lated the Company on its award for a contract to provide Ac- cess-A-Ride services in Staten Island and mentioned transition- al issues affecting the employees of incumbent carriers: As you may be aware, some incumbent carriers are not re- ceiving an award at this time. Employees of these carriers may approach you requesting a position in your organization. We encourage your taking advantage of available and experi- enced personnel who are dedicated to Access-A-Ride service. We request that you keep in mind that while you are mobiliz- ing and ramping up, New York City Transit will be relying on the on-street service provided by those carriers ramping down. To that end, any transfer of employees must be ad- dressed and handled in an organized and manageable fashion. As such, NYC Transit will work closely with you and help coordinate such transfers so as not to adversely affect the overall program. You, as a carrier, are required to keep NYC Transit informed of the staff you will be hiring. Operator hires must be reviewed by the Standards and Compliance (S&C) Transportation Section. Maintenance personnel hires 11 GC Exh. 21(a) at 48. 12 GC Exh. 36 at pp. 2 and 8. 13 GC Exh. 21(a) at 48, 57. MV PUBLIC TRANSPORTATION 873 must be reviewed by the S&C Maintenance Section. All managerial and support staff hires should be reviewed by your assigned NYC Transit Contract Manager.14 On September 5, the Transit Authority formally accepted the Company’s bid and awarded it Contract No. 07H9751 for Ac- cess-A-Ride Paratransit Transportation Service (the Contract). The Transit Authority’s acceptance was explicitly based on the Company’s best and final offer (BAFO) for the “total estimat- ed” amount of $422,066,234.00. It was final and not condi- tioned upon any other developments.15 The Contract terms, consistent with the Company’s proposal, included a 10-year term for the operation of 150 vehicles, with an expansion to 300 vehicles. The vehicles were to be leased to the Company by the Transit Authority.16 Specifically, the Contract’s “Vehi- cle Start Up/Expansion Schedule” required the Company to field 15 vehicles by October 20, and an additional 20 vehicles for each of the next 3 months. Therefore, by January 20, 2009, the Company would have been required to have 75 vehicles in operation. Thereafter, the Contract Schedule required the oper- ation of an additional 10 vehicles per month until 150 vehicles were reached. At such a rate, 150 vehicles would be in opera- tion by September 2009. Once it attained an operational level of 15 vehicles, the Company was required to field an additional 10 vehicles per month until 300 were in operation.17 By letter, dated September 22, Michael Cosgrove, the Transit Authority’s representative, advised Rapacioli that the Transit Authority expected the Company to “maintain the ramp up commitment” in its proposal.18 Rapacioli responded immedi- ately by submitting a “ramp-up” chart containing the schedule for vehicles in service and total drivers: October 1—11 vehi- cles, 10 drivers; October 13—11 vehicles, 16 drivers; October 20—15 vehicles, 29 drivers; November 17—35 vehicles, 70 drivers; December 22—55 vehicles, 109 drivers; January 19, 2009—75 vehicles, 148 drivers; February 16, 2009—85 vehi- cles, 168 drivers; March 16, 2009—95 vehicles, 188 drivers; April 13, 2009—105, 208 drivers; May 11, 2009—115 vehi- cles, 228 drivers; June 15, 2009—125 vehicles, 248 drivers; July 13, 2009—135 vehicles, 267 drivers; and August 10, 2009—135 vehicles, 267 drivers.19 14 CP Exh. 2. 15 The Company attempted to inject uncertainty as to the award based on letters to a local newspaper urging support for the prior ser- vice provider. (R. Exh. 3, p. 2.) However, there was no credible evi- dence even suggesting that the notice of award/notice to proceed issued by the Transit Authority, the local governmental agency charged with administering the Contract, was anything other than final. (GC Exhs. 20, 22.) 16 GC Exh. 20, Scope of Work, Attachment 1 at 10. 17 GC Exh. 20, Attachment 30. 18 GC Exh. 27. 19 Although Rapacioli did not clarify the specific categories listed on the chart, it appears that the number of drivers needed to operate in- cluded an additional amount of relief drivers. (Tr. 345.) With respect to the number of vehicles projected, I relied on the information for vehicles in service, rather than vehicles assigned, since the latter statis- tic is a more reliable indicator of actual operations. (GC Exh. 28.) D. Start-Up Hiring, Training, and the Recognition Following award of the Contract, the Company immediately hired driver trainees as required by the Contract. The first group of 22 trainees commenced the 3–4 week long training course on August 28. The initial part of the course consisted of at least two weeks and two days of classroom instruction at the Lake Avenue facility. Around the middle to latter part of Sep- tember—but after September 12—the trainees reported to the LaSalle Street facility for driving instruction.20 Upon success- ful completion of the course and certification by the Transit Authority, trainees were eligible to operate a Company vehi- cle.21 However, there is a high turnover and not all trainees completed the course. Of the 22 trainees in the first class, only 11 were certified as drivers.22 By September 26, 42 driver trainees were on the payroll. By that time, however, four of the employees hired prior to September 12 were no longer em- ployed.23 Pursuant to a September 29 email directive from the Transit Authority, the Company commenced operations by operating eight routes with 11 vehicles on October 1.24 On October 6, the Company publicly announced its successful start under the Contract in a press release, which stated, in pertinent part:25 MV Public Transportation, Inc. —chosen by the New York Metropolitan Transit Authority to manage and operate para- transit services for Staten Island—has successfully begun op- eration of the Access-A-Ride paratransit services in the bor- ough. In less than 30 days from contract signing, MV placed a strong team in position, and transitioned into the service. Un- der the terms of the 10-year contract, MV began providing service on October 1 with 11 vehicles on eight routes. 20 Neither Rapacioli nor current employee Stephen Rebracca provid- ed specific dates as to when the classroom portion ended and the driv- ing portion began. However, Rapacioli explained that the driving por- tion would have commenced no sooner than 2 weeks and 2 days after the classroom instruction began. (Tr. 399.). Rebracca testified that he did not report to the LaSalle Street facility for the driving portion of the course until the third or fourth week in September. (Tr. 207, 212.) Based on such testimony, it is clear that employees were not yet en- gaged in the driving portion of the training course as of September 12. 21 The job code for drivers was denoted as “610” on the first set of payroll records, but changed to job code “T156610” by the check date of September 26. (GC Exh. 31; Tr. 352.) 22 I based this finding on the testimony of current employee Stephen Rebracca and Rapacioli, as the dates of hire reflected in the Company’s payroll records appeared to lag behind the documented hiring dates. (Tr. 206–210, 399–401, 456–457; GC Exh. 31, Div. 156(8)–(9).) Not- withstanding my aforementioned ruling to draw adverse inferences against the Company regarding the payroll records, the General Coun- sel and Charging Party did not request that I rely on the payroll record of indicating a work force of 18 driver trainees as of September 12 and assumed, for purposes of their legal arguments, that there were 22 driver trainees in the first class. (GC Br. 28, 4748; CP Br. 3.) 23 Christopher Dotts, Anthony Giambrone, Anthony Miceli, and Al- exander Peter. 24 Rapacioli referred to different starting dates, October 1 and 5, but the former appears more compatible with the evidence received. (GC Exhs. 23, 25; Tr. 320, 452.) 25 GC Exh. 23. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 874 The company has operated paratransit services with the MTA since 2001, and currently has a local office in Brooklyn. The initial contract award includes a doubling of the vehicles used to provide service—from 150 to 300. The payroll records reveal an escalation in operations after October 1 consistent with the Company’s proposal.26 By Oc- tober 10, 79 drivers were on the payroll, including 55 of which were operating routes by October 12. However, two more employees hired prior to September 12 were no longer employed and another was working as a dispatcher.27 By Oc- tober 24, 97 drivers were on the payroll. However, one em- ployee hired prior to September 12 was no longer em- ployed.28 By November 7, 125 drivers were on the payroll. However, another employee hired prior to September 12 was no longer employed.29 By November 21, 119 drivers were on the payroll. However, another employee hired prior to Sep- tember 12 was no longer employed.30 By December 5, 133 drivers were on the payroll. By December 19, 144 drivers and 12 mechanics were on the payroll, 139 of which were working by December 12. By then, only 6 of the employees hired prior to September 12 were still employed. By January 2, 2009, 164 drivers and 13 mechanics were on the payroll. By January 16, 188 drivers and 15 mechanics were on the payroll. At that point, the Company was operating at least 160 shifts.31 After January 2009, the total number of drivers and mechan- ics hired each payroll period continued to grow significantly, as follows: January 31: 238 (248 drivers, 18 mechanics); February 28: 279 (252 drivers, 26 mechanics); March 31: 261 (235 driv- ers, 26 mechanics); April 30: 264 (237 drivers, 27 mechanics); May 31: 269 (240 drivers, 29 mechanics); June 30: 278 (249 drivers, 29 mechanics); July 31: 298 (269 drivers, 29 mechan- ics); August 31: 286 (257 drivers, 29 mechanics); September 30: 298 (266 drivers, 29 mechanics); October 31: 307 (279 drivers, 28 mechanics); and November 30: 309 (280 drivers, 29 mechanics).32 The number of vehicles assigned by the Transit Authority to the Company between September 2008 and November 2009, generally reflected the work force in place at the time and the initial projections by the Company—roughly one vehicle for every two drivers: September 2008: 12; October 2008: 22; No- vember 2008: 40; December 2008: 77; January 2009: 89; Feb- ruary 2009: 101; March 2009; 111; April 2009: 119; May 2009: 124; June 2009: 124; July 2009: 125; August 2009: 129; Sep- tember 2009: 129; October 2009: 129; November 2009: 131; and December 11, 2009: 124.33 26 GC Exh. 31. 27 Robert Meisels, Margaret Hicks, and Jamelia Alleyne. 28 Anthony King. 29 Elizabeth Kelley. 30 Arlene Crupi. 31 GC Exh. 4. 32 GC Exhs. 31–32. 33 Rapacioli testified that the Transit Authority did not adhere to the schedule for vehicle service as set forth in Attachment 30 to the Con- tract. (Tr. 403, 411412.) However, the Company’s records confirm that the schedule was generally met. (GC Exhs. 24, 28.) E. The Company’s Agreement With Local 707 On August 28, the Company and Local 707 executed a “Card Check and Neutrality agreement for Staten Island, New York” (card-check agreement). Essentially, that agreement required the Company to recognize Local 707 upon a showing that a majority of employees had signed authorization cards or a peti- tion. The applicable employees consisted of “[a]ll full-time and regular part-time drivers in Staten Island, NY, excluding ware- house employees, mechanics and similar maintenance employ- ees office clerical employees, managerial employees, guards, and supervisors as defined by the National Labor Relations Act.” An arbitrator from the Federal Mediation and Concilia- tion Service was required to certify the showing of interest. The Company further agreed to maintain a neutral position as to whether employees were to be represented by Local 707. In exchange, the latter agreed to refrain from negative campaign- ing against the Company.34 That same day, as employees arrived for training at the Lake Avenue facility, they were met by Local 707’s business repre- sentative, Danny Pacheco, and several other union officials. The Local 707 representatives solicited membership in Local 707, handed union authorization cards to the employees, sug- gested they speak among themselves and asked them to return the cards signed if they agreed.35 By letter, dated September 8, Local 707’s president, Kevin McCaffrey, informed the Company that it believed that it had “majority status” and requested verification pursuant to the card-check agreement.36 On September 11, Local 707 present- ed arbitrator Elliot Shriftman with 20 signed authorization cards from among the Company’s 22 employees in the unit of drivers employed during the payroll period ending September 13.37 In response, Shriftman certified that Local 707 “was designated by a majority of the Company’s employees in the unit as their exclusive bargaining representative for purposes of collective bargaining” (the certification).38 The appropriate bargaining unit (the Unit) was defined as follows: All full-time and regular part-time drivers in Staten Island, NY, but excluding warehouse employees, mechanics and similar maintenance employees, office clerical employees, managerial employees, guards and supervisors as defined by the National Labor Relations Act. 34 Jt. Exh. 1. 35 Rapacioli and Rebracca provided consistent testimony regarding these events. (Tr. 207–209, 417.) The payroll records, however, ap- peared to lag behind the actual starting date for training since it is not disputed that Rebracca began attending training classes on August 28, although the September 12 payroll record indicates that he was hired on September 5. In fact, that record shows only one employee, Christo- pher Dotts, hired on August 29, while the rest were formally hired between September 2 and 8. (GC Exh. 31, Div. 156(9).) 36 GC Exh. 19. 37 As noted at fn. 22, although the payroll records indicate that there were 18 driver trainees on the payroll as of September 12, the General Counsel and Charging Party assumed, for purposes of their legal argu- ments, that the number of cards presented to the arbitrator of September 12 equaled the number of driver trainees on the payroll on that date. 38 GC Exh. 8(b). MV PUBLIC TRANSPORTATION 875 Following the certification, on September 12, the Company and Local 707 entered into a recognition agreement recognizing the latter as the exclusive collective-bargaining representative of the Company’s full-time and regular part-time drivers in Staten Island, but excluding warehouse employees, mechanics and similar maintenance employees, office clerical employees, managerial employees, guards and supervisors as defined in the [Act].” The Company and Local 707 also agreed to “meet promptly and engage in good-faith negotiations concerning the terms of a Collective-Bargaining Agreement governing the wages, hours and other terms of employment of the employees in the appropriate bargaining unit.”39 At this point in time, however, all of the Company’s employees were trainees and none had attained the employment status of driver. The process of obtaining signed union authorization cards brought the issue of labor representation to the attention of most, if not all, of the employees in the first training class. However, they were not kept abreast of subsequent develop- ments by either the Company or Local 707, since neither the certification nor recognition agreement were posted in the driv- ers’ room at the LaSalle Street facility in September.40 Even if those documents had been posted on the bulletin board or walls in the small drivers’ room there, they would not have been 39 Jt. Exh. 2. 40 This finding is based on my determination that Company employ- ees Stephen Rebracca, Eric Baumwoll, and John Russell (Tr. 88–90; 143–144; 206, 215–216) were more credible than Rapacioli, Pacheco, Ranieri, and Osman on this point (Russell did not start work until Oc- tober 20.) In untangling the conflicting and vague testimony, it was evident that the drivers’ room was cluttered with papers posted all over. Rapacioli was unsure of the date, but speculated that he posted the certification and a handwritten note on either September 18 or 20, but contradicted that assertion with an estimate that he posted them in “late, late September.” (Tr. 420–421.) Pacheco testified that he posted the certification after the September 12 recognition agreement was entered into, but failed to provide the names of persons with whom he spoke. That assertion also appears to conflict with Local 707’s August 4, 2009 position statement that it posted a September 18 docket letter from Region 29 in the drivers’ room, but omitted reference to the posting of any other documents. (Tr. 388, 548–549, 573; GC Exhs. 8(b), 13, 34.) Ranieri’s testimony was vague and inconsistent, and he was impeached after initially denying having provided a pretrial written statement. (Tr. 518–519, 524–528.) Moreover, the testimony of Osman, an extremely evasive witness who initially invoked her Fifth Amendment privilege against self-incrimination before agreeing to be cross-examined by the General Counsel, was completely devoid of credibility. Thus, I do not credit her assertions as to when she first spoke with Pacheco about Local 707 representation or saw notices posted in the drivers’ room. Her direct examination appeared overly scripted, especially with re- spect to specific dates, and it was evident that her relevant testimony— that she saw the certification, recognition agreement, and Dana notice all posted in the drivers’ room on September 18, 2008—was based solely on Local 707’s counsel having shown her the Regional Direc- tor’s letter with that date a year later. (Local 707, Exh. 1.) Only after the parties agreed to permit Osman to consult with Local 707 counsel did she agree to be cross-examined. She looked continuously at Pacheco after answering questions, sometimes grinning. (Tr. 584–587, 593–598, 608–610, 614–619, 625, 631–632.) Lastly, Russell, whose testimony I found consistent and credible, testified that Osman admitted to him that she was offered a raise and more hours for testifying on behalf of the Company. (Tr. 726, 729–731.) reasonably visible in September to employees, such as Stephen Rebracca, who was hired on September 5.41 The bulletin board, as well as the other walls in the driver’s room, “was out of control.” Employees used the room to post “their own stuff,” dispatchers posted “driver’s notices and trips” and “there was paper all over the place.”42 By letter, dated September 15, Local 707’s counsel notified the Board’s Region 29 that his client was “voluntarily recog- nized” by the Company, enclosed a copy of the recognition agreement executed by the Company and Local 707, and re- quested that Region 29 “provide the necessary Notices so that the Employer may post the Notice of Voluntary Recognition as quickly as possible.”43 Pacheco received a response from Re- gion 29 on September 20, but did not post that communication in the drivers’ room during September.44 On October 2, the Company was notified by Region 29 that it needed to post a Dana notice.45 On October 5, Rapacioli posted them in the driver’s room at the LaSalle facility.46 In addition, the Company’s employees began learning about Local 707’s representative status during training classes beginning on October 6, as training instructor McElhose began to introduce Pacheco to new trainees as their union representative. Employ- ees were then directed to sign authorization cards on behalf of Local 707 and return them immediately. In response to ques- tions as to why the cards needed to be filled out, supervisors explained that they were a condition of employment.47 Rapaci- oli made such statements to a new class of trainees on October 20. During other classes, including the one on November 10, McElhose did the introduction, informed the trainees that they 41 Rebracca, a current employee subpoenaed by the General Counsel and the trial’s most credible witness, provided spontaneous and con- sistent testimony. (Tr. 214–215.) 42 The collective testimony of Rapacioli, Pacheco, and Ranieri con- firmed that the drivers’ room walls, including the bulletin board, were covered with many postings. Rapacioli described the situation as “out of control.” As such, it was evident that any papers posted in that room were soon covered or lost amidst a virtual paper jungle and, thus, not reasonably visible to drivers entering that room. (Tr. 421, 462–463, 518–519, 547, 571, 573; GC Exh. 8(b).) 43 GC Exh. 35. 44 I base this finding on the same reasons stated in fn. 40. 45 Dana notices are workplace notices provided by the Board notify- ing employees of their right to file a decertification petition within a 45- day window period, pursuant to the Board’s decision in Dana Corp., 351 NLRB 434 (2007). 46 As to this particular posting, I found Rapacioli’s certainty and spontaneity in describing his response to Region 29’s directive that he post the Dana notice more credible than the General Counsel’s wit- nesses who did not recall seeing that notice. (Tr. 422-423; R Exh. 8.) Moreover, Rebracca testified that he heard about this development from other drivers in early November, which is consistent with the notice having been posted in October. (Tr. 215.) 47 Pacheco did not refute the credible testimony of current driver Nilda Muniz regarding the events of October 6. However, I did not, however, credit her testimony that Pacheco misrepresented the purpose of the authorization cards, since she conceded being told that employ- ees were represented by Local 707. (Tr. 228–231, 238; GC Exh. 15.) DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 876 were required to return the completed authorization cards and collected them on behalf of Local 707.48 On December 11, the Company’s employees ratified a col- lective-bargaining agreement. The collective-bargaining agreement contains union-security and checkoff provisions in Article 3, Sections 3.2 and 3.3, respectively. On December 12, the Company entered into a collective-bargaining agreement with Local 707 as the exclusive collective-bargaining repre- sentative of the Company’s employees in the following modi- fied contract unit: All full-time, part-time and casual drivers, mechanics and util- ity workers working under any Contract between the Compa- ny and New York City Transit Authority, excluding office clerical employees, mechanics, utility workers, professional employees, road supervisors, dispatchers, guards and supervi- sors as defined in the Act.49 About 2 weeks after execution of the collective-bargaining agreement, the Company’s dispatchers distributed packets to drivers and mechanics. The packets included a letter from Ra- pacioli, dated December 22, Local 707’s union application, a dues-checkoff form, and union benefits package. The letter stated that the materials were distributed at Local 707’s request and instructed drivers to return the completed forms to the dis- patcher.50 By letter, dated December 27, Rapacioli informed drivers that, beginning January 12, 2009, they would be able to select routes, effective January 17.51 On or before January 12, the Company posted a notice near the door to the driver’s room at the LaSalle Street facility.52 It stated: All Employees You must sign the union application in order to pick. Signing is a condition of employment. If you have any questions, contact your union rep or Quinto. Respectful- ly, John Duncan.53 John Russell was hired by the Company as a driver-trainee on October 20, and remains employed as a driver. He saw the posting in the LaSalle Street facility and asked Duncan, with clear indignation, why employees needed to sign the Local 707 forms. Duncan responded that it was a condition of his em- ployment, since he needed to sign the forms in order to select a route and, if he was not able to select a route, he could be ter- 48 McElhose was not called as a witness and Rapacioli did not refute the credible and fairly consistent testimony of Russell, Baumwoll, and current driver Sal Prestia regarding those introductions. (Tr. 81–85, 140–142, 243, 249; GC Exh. 16.) 49 A handwritten notation on Jt. Exh. 1 indicates that the titles “me- chanics and utility workers” should be “removed” from the excluded. The unit set forth in the collective-bargaining agreement is not the same unit which Arbitrator Shriftman certified on September 11,2008, which included only drivers in Staten Island, nor is it the same unit referenced in the Dana notice forwarded to Respondent MV by Region 29 on October 2, 2008. 50 Rapacioli did not refute Russell’s testimony as to the distribution of the union packets. (GC Exhs. 3, 23; Tr. 90.) 51 GC Exh. 4. 52 I base this finding on the credible testimony of Russell, Rebracca, Prestia and Muniz. (Tr. 93–98, 216, 234–235, 247–248.) 53 GC Exhs. 5–6. minated. Russell then took a picture of the notice with his cell phone. Later that day, dispatchers began handing out the union applications and dues-checkoff forms, and they were also placed on a table in the drivers’ room for employees to pick up and fill out.54 F. Employees Engage in Activity on Behalf of Another Labor Organization Eric Baumwoll was hired by the Company as a driver-trainee on October 15. However, he was reassigned to a clerical posi- tion and never served as a driver. Baumwoll was terminated on December 22.55 During late January to early February 2009, Baumwoll and Russell solicited support for Local 726, Interna- tional Union of Journeymen and Allied Trades (Local 726) near the LaSalle Street facility.56 They distributed authorization cards and flyers on behalf of Local 726 and asked employees, as they arrived to or left from work, to return them signed. On one of those occasions, Baumwoll spoke with and obtained a signed authorization card from another driver, Susan Santopao- lo, as she left the trailer. Their interaction was observed by Rapacioli, who got out of his vehicle and photographed the encounter. He intercepted her as she was getting in her vehicle and instructed her to retrieve the authorization card. Santopao- lo complied, went to retrieve the card and handed it to Rapacio- li. Rapacioli immediately tore up the card and approached Baumwoll, cursed and spit at him, vaguely threatened his fami- ly and threatened to call the police. Russell observed the entire incident involving Santopaolo, including Rapacioli ripping up the authorization card, but did not observe Rapacioli’s subse- quent interaction with Baumwoll.57 54 The credible testimony of Russell, Rebracca, Prestia, and Muniz regarding the posting of these notices and the employee directives was not refuted by Rapacioli. (Tr. 94–96, 216–217, 234–235, 239, 246– 249; GC Exh. 5–7.) Osman and Vincent Smaldone, another driver shop steward for Local 707, testified that they did not see the notice posted in the drivers’ room. (Tr. 586, 644–645.) I found neither credible, as both failed to observe a notice that Rapacioli did not dispute posting and distributing, yet testified that they observed the earlier postings in September and October. (Tr. 584–586, 643–645; GC Exhs. 8(b) and 13.) Moreover, Smalldone conceded that he was prepared to testify in the presence of Rapacioli, Pacheco, Osman, and Local 707’s counsel. (Tr. 655–656, 658.) Osman omitted any reference to that encounter and testified that she was prepared to testify at work while in the presence of Pacheco. (Tr. 593–594.) Moreover, as previously stated, she was not a credible witness. 55 GC Exh. 31, Div. 156(12). 56 GC Exh. 2. 57 I based this finding on the versions provided by Russell and Baumwoll. Neither provided a specific date as to when the Santpaolo incident occurred, except to state that it occurred between late January and early February 2009. (GC Exh. 2; Tr. 101–108, 128–130, 144– 147, 149–150, 159–162.) Moreover, there was controversy over Baumwoll’s separation from the Company and Rapacioli’s vague con- tention that Baumwoll served as a spy for another organization while employed by the Company. Nevertheless, Rapacioli essentially con- ceded that the incident occurred. He testified that he observed Baum- woll hand an authorization card to Santpaolo outside the LaSalle Street facility, and then he spoke with Santpaolo and yelled at Baumwoll. I found it less than credible that an employee, who did not testify, would simply approach Rapacioli and express concern that she did something wrong. (Tr. 436–437.) I did not, however, credit vague and undated MV PUBLIC TRANSPORTATION 877 G. Rapacioli Threatens Russell with Discharge At the end of April 2009, Russell went to the South Avenue facility to get a new identification card. While in the facility, he entered a classroom of trainees while they were on a break and expressed his support for Local 1181. The instructor was not present at the time. Russell returned the next day and re- ceived a note instructing him to see Rapacioli. After his shift, Russell went to see Rapacioli in his office. In a profanity-laced tirade expressing disdain for Local 1181, Rapacioli warned Russell that I don’t want to hear you ever . . . talking about that union in my building again. If I hear you talking about that in the building again I’m going to fire you. And tell [Local 1181 of- ficials] from Brooklyn to [do something else with them- selves]. This is my company.58 III. LEGAL ANALYSIS A. The Unlawful Recognition Charges The complaint alleges that the Company violated Section 8(a)(1), (2), and (3) of the Act and Local 707 violated Section 8(b)(1)(A) and 8(b)(2) by entering into a recognition agreement at a time when Local 707 did not employ a representative seg- ment of its ultimate employee complement and was not yet engaged in its normal business operations, and then entering into and maintaining a collective-bargaining agreement. The Company and Local 707 denied the allegations and assert that the complaint is barred by the statute of limitations set forth at Section 10(b) of the Act. “An employer violates Section 8(a)(2) of the Act when it ex- tends recognition to a union that does not represent an unco- erced majority of employees.” Garner/Morrison, 353 NLRB 719, 723 (2009) (citing Ladies Garment Workers v. NLRB, 366 U.S. 731 (1961)); Dedicated Services, 352 NLRB 753, 761 (2008). Further, by entering into, maintaining, and enforcing a collective-bargaining agreement containing a union-security clause at a time when such a union did not represent an unco- erced majority of employees, the employer violates Section 8(a)(3) of the Act. Duane Reade Inc., 338 NLRB 943, 944 (2003), enfd. 99 Fed. Appx. 240 (D.C. Cir. 2004). Similarly, by accepting unlawful assistance from an employer, a union violates Section 8(b)(1)(A) of the Act, Ladies Garment Work- ers, supra. Furthermore, by entering into, maintaining, and enforcing a collective-bargaining agreement with a union- security clause at a time when it does not did not represent an uncoerced majority of employees, the union violates Section 8(b)(2) of the Act as well, Dairyland USA Corp., 347 NLRB references by Russell and Baumwoll to other incidents involving Ra- pacioli. 58 The testimony of Russell, Rapacioli, and Training Manager Clar- ence Smith establishes that Rapacioli met with Russell concerning his classroom solicitation. (Tr. 110–112, 464–465, 732–733.) Rapacioli denied, however, speaking to Russell about unions and insisted he simply told him he would fire him if he ever disrupted a class again. (Tr. 443.) Yet, he conceded that Russell did not disrupt a class, as the instructor was not present, and that he mentioned Russell’s statements to the trainees about changing union representation. (Tr. 444.) 310 (2006), enfd. 273 Fed. Appx. 40 (2d Cir. 2008); Duane Reade, supra. In determining whether an employer prematurely recognized a labor organization, the Board applies a two-part test: (1) the employer must employ a substantial and representative com- plement of its projected work force, that is, the job or job clas- sifications designated for the operation must be substantially filled; and (2) the employer must be engaged in normal busi- ness operations. This approach was first articulated in Hilton Inn Albany, 270 NLRB 1364, 1365 (1984), and reaffirmed in Elmhurst Care Center, 345 NLRB 1176, 1177–1178 (2005), which explained the balancing act involved in such situations: “The Board’s overall goal is to accommodate the right of em- ployees who have already been hired to representation without undue delay to the right of employees yet to be hired to have their bargaining representative selected by a substantial and representative complement of employees engaged in the em- ployer’s normal business operations.” 1. The employee work force at the time of the recognition The General Counsel contends that the 22 drivers employed at the time of recognition were neither substantial nor repre- sentative of the “the ultimate projected employee complement.” The Company’s proposed schedule, which was incorporated into the Contract, was expected to reach an operational level of 150 vehicles by approximately September 2009. The General Counsel, however, relies on the fact that the Company was operating 124 vehicles and employed approximately 309 em- ployees as of December 2009. Applying the 30 percent thresh- old applied by the Board in General Extrusion, 121 NLRB 1165 (1958), the General Counsel contends that a substantial and representative amount would be approximately 92 employ- ees—an employment level reached in mid to late October 2008. Alternatively, the General Counsel notes that, even based on the Company’s “ramp-up” chart projecting 267 drivers for 150 vehicles, a representative complement would be 80 drivers—an employment level reached after October 2.59 The Company contends that it employed a representative complement of its projected work force at the time of recognition because it had “no guarantee, and could have no certainty, that its employee complement would expand significantly beyond the size at the time of recognition.”60 The Board has frequently relied on General Extrusion Co., 121 NLRB at 1167, for guidance in determining, in an expand- ing unit situation, whether the Company employed a substantial and representative complement of its projected work force as of the date of the recognition. In that case, the Board held that the minimum workforce threshold was met where “at least 30 per- cent of the complement employed at the time of the hearing had been employed at the time the contract was executed, and 50 percent of the job classifications in existence at the time of the hearing where in existence at the time the contract was execut- ed.” See, for example, Dedicated Services, 352 NLRB at 762, where the Board found that the employer did not meet the threshold where, at the time of recognition, it “employed far 59 GC Br. 48. 60 R. Br. 14. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 878 fewer than 30 percent of its normal complement of unit em- ployees.” In Hilton Inn Albany, 270 NLRB at 1366, on the other hand, the judge found that the employer had not em- ployed a substantial and representative complement even though it had hired 33–35 percent of the full work force and 55 percent of the classifications. The judge found that only a small percentage of these employees had performed any work and few had worked more than 8 hours. The Board agreed with the judge and noted that a mere 8 to 15 percent of those em- ployees performed any work or worked for more than 8 hours. The Company and Local 707 entered into a recognition agreement on September 12. Based on an arbitrator’s certifica- tion of authorization cards, the parties assumed, for the purpose of legal argument, that there were 22 drivers on the payroll as of that date. That level of work force amounted to a mere 7.9 percent of the 280 drivers on the payroll as of the date of the hearing. Moreover, no mechanics has been hired by that point and, thus, the other classification ultimately incorporated into the collective bargaining agreement was not yet in existence. Alternatively, the 22 drivers constituted 8.2 percent of the 267 drivers that the Company was expected to ramp-up to within 10 months.61 Both approaches fall far short of the General Extru- sion threshold of 80 to 84 drivers that would have been consid- ered a substantial and representative portion of the projected work force.62 Lastly, the Company’s assertion that it was still uncertain on September 12 as to the amount of employees it would be hiring is belied by the terms of the Transit Authority’s acceptance on September 5 of the Company’s bid and award of a $422,066,234.00 10-year contract to operate 150 vehicles, with an expansion to 300 vehicles. The Start Up/Expansion Sched- ule set forth a specific schedule that would rise incrementally to an initial operational level of 150 vehicles by September 2009. Although several pleas of support for the prior Staten Island service provider appeared in the local media, there is no credi- ble evidence casting doubt as to the finality of the notice of award/notice to proceed issued by the Transit Authority. 2. Whether the Company was engaged in normal business operations The General Counsel and Local 1181 also assert that the Company was not engaged in its normal business operations when it recognized Local 707 because, at the time, unit em- ployees were engaged only in training activities. Applying Elmhurst Care Center, Hilton Inn, and Albany Dedicated Ser- vices, they contend that the Company’s normal business opera- tions consist of driving disabled and elderly clients to appoint- ments within New York City. The Company cites Klein’s 61 The Board typically applies such an analysis based on the work force amount as of the date of the hearing. However, hearings occur anywhere from several months to years after accrual, while the facts in this case include actual benchmarks as of the date of the unlawful recognition by which the initial ramp-up to approximately 150 vehicles would be achieved by September 2009. 62 Utilizing the 18 employees listed on the payroll record, that work force amounted to 6.4 percent of the 280 drivers on the payroll as of the date of the hearing and 6.7 percent of those on the payroll within the 10 month ramp-up period. Golden Manor, 214 NLRB 807 (1974), for the proposition that “essential training and preparation constitutes normal business operations.”63 The second prong of the Elmhurst Care Center test is prem- ised on the notion that “employees are better able to register their electoral choice when they are actually engaged in the work for which representation is sought.” As such, the Board found that an employer is not engaged in “normal business operations” when the place of employment is not open to the public, employees are “working relatively few hours” and em- ployees’ responsibilities are “limited to training and other tasks in preparation for receiving” customers. 345 NLRB at 1177. In Elmhurst Care Center, supra, the employer, a skilled nurs- ing facility operator, and the union executed a collective- bargaining agreement nearly a month before the first patient was admitted to the facility. The nursing staff was participating in training and other preparations to set up the facility to re- ceive patients, such as making beds and setting up equipment. The Board determined that the employer was not engaged in normal business operations at the time the employer voluntarily recognized the union. While the Board admitted that “training may be essential to the operation of the business, . . . it is not the business itself.” The Board balanced the “interests of the first group of employees hired but not yet performing the duties for which they were employed and the interests of the antici- pated full complement of unit employees.” “[W]aiting to grant recognition until the facility had opened would have increased the number of unit employees participating in the decision re- garding representation while having minimal impact on those employed earlier.” Id. at 1178. Similarly, in Hilton Inn Albany, 270 NLRB at 1366, the Board found that the employer’s hotel was not in its normal business operations at the time of the voluntary recognition. The hotel was not yet open to the public and the only work being done was the training of cooks and kitchen personnel, and performance of housekeeping duties. By the date of recog- nition, several categories of hotel workers, including waiters, bus boys and maintenance employees, had not worked at all. The Board also noted that the “size of the employee comple- ment actually working and the number of hours worked in- creased so rapidly immediately following recognition” that the employer was not engaged in normal business operations, nor had it engaged in full-scale training in preparation for the open- ing. Under a different set of facts, the Company’s reliance on Klein’s Golden Manor, 214 NLRB 807 (1974), might have merit. In that case, the Board deemed the recognition lawful, even though the employer was still training its workforce, since the employees “were actually performing preparatory services for the employer that were necessary for the operation of that facility.” Id. at 813–814. As noted by the dissent in Elmhurst Care Center, “the training work in Klein’s Golden Manor—in preparation for the facilities opening—was essentially the same as the work after it opened its doors to patients” and the majori- ty erroneously distinguished that earlier case because, “[i]n both cases, there were no patients at the time of recognition and 63 R. Br. 15. MV PUBLIC TRANSPORTATION 879 the employees were engaged essentially in the same type of work before and after opening day.” Applying the legal principles articulated in Klein’s Golden Manor and the dissent in Elmhurst Care Center, the training involved at the Company’s facility on September 12 was not the same type of work that employees would perform after operations commenced on or around October 1. The type of work that the drivers would perform after October 1 consisted of operating vehicles to transport elderly and disabled passen- gers in or around Staten Island. On the date that the Company and Local 707 entered into the recognition agreement, however, employees were still in classroom training at the Lake Avenue facility and had not yet received training operating vehicles at the LaSalle Street facility. This nuance is particularly im- portant where, as here, half (11 of 22) of those who began classroom instruction would not successfully complete the rig- orous training course. Based on the foregoing, the Company’s recognition of Local 707 as the labor representative of its employees, and the collec- tive-bargaining agreement that ensued, at a time when the Company did not employ a representative segment of its ulti- mate employee complement and was not yet engaged in its normal business operations, violated Section 8(a)(2) and (1) of the Act. Having received unlawful assistance from the Compa- ny, Local 707 violated Section 8(b)(1)(A) and 8(b)(2). Dairy- land USA Corp., supra. B. The 10(b) Defense Notwithstanding the aforementioned violation, the Company contends that Russell’s unlawful recognition and assistance charges are untimely under Section 10(b) of the Act because they accrued on September 12—the date of recognition—but were not filed until March 31, more than 6 months later. Rely- ing on Local Lodge No. 1424 (Bryan Mfg.) v. NLRB, 362 U.S. 411, NLRB v. Triple C Maintenance, Inc., 219 F.3d 1147 (10th Cir. 2000), Texas World Service Co. v. NLRB, 928 F.2d 1426 (5th Cir. 1991), and R.J.E. Leasing Corp., 262 NLRB 373 (1982), the Company insists that the 10(b) period commenced to run when any employee received notice of the September 12 recognition agreement, not every time an individual employee learned of the potential claim. The General Counsel, relying on Dedicated Services, supra, contends that the 10(b) period was triggered on October 20 when Russell commenced employment and learned of the recognition. Alternatively, the General Counsel suggests that the time period commences when: (1) other employees received clear and unequivocal notice of a violation, which could have occurred no earlier than October 2, or (2) a representative portion of the ultimate employee com- plement was hired. The Charging Party’s alternative theory essentially suggests that the Dana notice, which was premised on unlawful conduct and indicated that a charge could not be filed more than 45 days after it was posted, was misleading and should be deemed tolled from the date of posting, October 5, until November 20. It is undisputed that, on August 28, the Company and the Union executed a card check and neutrality agreement requir- ing the Company to recognize the Union as the bargaining rep- resentative for unit employees upon a showing of majority sta- tus. On September 12, after an arbitrator certified that a majori- ty of the 22 unit employees signed authorization cards for Local 707, the Company and Local 707 entered into a recognition agreement. The Company posted the Dana notices on the bul- letin board in the drivers’ room on October 5. On October 20, Russell began working for the Company and attended his first training class, during which he learned that the Company rec- ognized Local 707 as the bargaining representative for unit employees. Section 10(b) of the Act states, in pertinent part, that “no complaint shall be issued based upon any unfair labor practice occurring more than 6 months prior to the filing of the charge with the Board.” However, this limitations period “does not begin to run until the charging party has ‘clear and unequivocal notice,’ either actual or constructive, of a violation of the Act.” St. Barnabas Medical Center, 343 NLRB 1125, 1126 (2004), quoting Leach Corp., 312 NLRB 990, 991 (1993). Even if the charging party lacks actual notice of an unlawful recognition, Section 10(b) will still bar a claim outside the statutory period if the charging party had constructive notice of the recognition. Schaefer Group, Inc., 344 NLRB 366, 367–368 (2005) (party charged with constructive knowledge of unfair labor practice where it could have discovered the alleged misconduct through the exercise of reasonable diligence). On the other hand, “an unfair labor practice charge will not be time-barred if the “de- lay in filing is a consequence of conflicting signals or otherwise ambiguous conduct by the other party.” A & L Underground, 302 NLRB 467, 469 (1991). Moreover, the party raising Sec- tion 10(b) as a defense has the burden of proving that the com- plaint is time barred. Broadway Volkswagen, 342 NLRB 1244, 1246 (2004). As the charge was not filed until March 31, a straightforward application of the 6-month time limitation would bar any claims that accrued prior to September 30. The first obstacle for the 10(b) defense is that neither the Company nor Local 707 pro- vided notice of their September 12 recognition agreement to employees during September. Based on the credible testimony, the notices were not posted on the bulletin board in the drivers’ room during that month. Even if they had been, they would not have been reasonably observable, as the bulletin board and room walls were out of control with papers hanging all over. The lack of a clear notice posting in September negates applica- tion of Section 10(b). Assuming, arguendo, that employees did learn of the recog- nition in September, the issue becomes whether the Company can meet its burden of demonstrating that the 10(b) period be- gan running on September 12 or the day that the first employee learned of the recognition. The cases cited by the Company support the concept that the limitations period begins to run when a party first learns of an unfair labor practice. They are, however, distinguishable. In Bryan Manufacturing, 362 U.S. at 419, the Supreme Court held that charges were time-barred where employees filed charges more than 6 months after execu- tion of the allegedly unlawful collective bargaining agreement. It premised its ruling, however, on a rejection of employees’ assertions that ongoing enforcement of the agreement was a continuing violation. In this case, such a concept appears to rule out the Charging Party’s tolling theory based on a continu- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 880 ously defective and misleading Dana notice. It is, however, the posting of the Dana notice on October 5 or Russell’s hiring on October 20 that are alleged by the General Counsel as the ac- crual dates. NLRB v. Triple C Maintenance, Inc., supra, involved an em- ployer’s attempt, 3 years after the fact, to escape from an agreement it entered into with the union. In that case, the Court of Appeals agreed with the Board’s interpretation of the agree- ment as one within the meaning of Section 9(a), rather than Section 8(f), and its preclusion of the employer from challeng- ing the validity of the agreement based on the 10(b) limitations. 219 F.3d at 1159. Unlike that employer, who had notice of a potential claim for the 3 year period at issue, the Company’s employees in this case were unaware of the recognition agree- ment until October 5 at the earliest and, in Russell’s case, until October 20. In Texas World Service Co. v. NLRB, supra, the Court of Appeals rejected an employer’s 10(b) defense, which invoked Bryan Manufacturing’s proscription against resurrecting an earlier, otherwise time-barred unfair labor practice. The court premised its ruling on the fact that the unlawful recognition of a union occurred at a time when the employer had not yet hired employees and no one could have challenged the agreement. The Board’s affirmance of the judge’s ruling in R.J.E. Leasing Corp., supra, is consistent with that result. In that case, the judge rejected a 10(b) defense to a prehire agreement on the ground that employees first became aware of the disputed agreement well within the 6-months limitation period. 262 NLRB at 381–382. Here, again, the Company’s employees in this case were unaware of the recognition agreement until Oc- tober 5 at the earliest. Dedicated Services, Inc., supra, the primary case cited by the General Counsel and Charging Parties, is distinguishable, but provides guidance. In that case, Local 1181 filed a charge al- leging that the employer rendered unlawful assistance to Local 713 and entered into a collective-bargaining agreement with Local 713 at a time when Local 713 did not represent an unco- erced majority of employees in the bargaining unit, the em- ployer did not employ a representative complement of employ- ees and was not engaged in its normal operations. At the time of the recognition, the employer had not yet hired any employ- ees. More than 6 months later, Local 1181 filed its charge. The employer claimed that Local 1181, which already represented the employees, had constructive notice of the recognition with- in the 10(b) period because four job applicants were given un- ion authorization cards and told that Local 713 represented the company’s employees. Judge Fish disagreed, holding that knowledge of possibly unlawful acts on the part of any em- ployees was not attributable to Local 1181, which was other- wise unaware of the recognition agreement between the em- ployer and Local 713. He concluded that Local 1181 lacked clear and unequivocal notice outside the statutory period and rejected the untimeliness defense. 352 NLRB at 760. The Board agreed with Judge Fish that the employer violated Section 8(a)(2) and (1) by recognizing Local 713 as the exclu- sive collective-bargaining representative of the employer’s employees at a time when Local 713 had not obtained any signed authorization cards from employees and, thus, did not represent a majority of the employer’s employees. However, the Board sidestepped Judge Fish’s cogent analysis of alterna- tive accrual theories raised by the General Counsel, including the notion that a later date might be more appropriate for an accretion analysis. One possible implication of the Board’s avoidance of the 10(b) issues raised in Dedicated Services, Inc. is that the Act’s limitations provision was tolled as to any future charging party until it acquired clear and unequivocal notice of the unlawful recognition. Relying on that concept, however, would be peri- lous since Judge Fish found, and the Board agreed, that notice to employee/members of the union did not constitute notice to the union. In this case, on the other hand, we are dealing with a never-ending potential supply of charging parties in a continu- ously growing work force. Russell learned of the recognition agreement when he was hired on October 20. He filed his charge on March 31, well within the 6-month period thereafter. The 199 days that elapsed from the date of the recognition agreement (September 12) to the filing of Russell’s charge (March 31) was not significantly greater than the 188 days that elapsed during the same period in Dedicated Services, Inc. A reasonable approach in this case is found in Leach Corp., 312 NLRB 990 (1993). That case, which involved a charge for alleged contract repudiation, sheds light on the Board’s applica- tion of Section 10(b) in situations involving the earliest stages of work force creation. Recognizing that an employer would be obligated to recognize the union representing relocated em- ployees only if the relocated employees constituted a substan- tial percentage of the new employee compliment, the Board held that Section 10(b) would start running on the date when the transfer process was substantially completed. Accordingly, the Board rejected the employer’s contention that the limita- tions period began to run when the first employees were hired, holding that unit employees could not have suspected that the recognition was unlawful until a representative segment of the ultimate employee complement was hired. In our case, it can be argued that, while the Company knew to the extent to which it would hire, there is no proof that employees had similar knowledge as of September 12. Applying the principles of Leach Corp. to the facts here, it is probably a stretch to suggest tolling the statute of limitations until the work force was essentially complete—in this case, by September or October 2009. A more reasonable approach bal- ancing the interests of employees seeking to organize and the proscription against representation based upon union recogni- tion by an unrepresentative minority would deem accrual as of the date when the company hired a representative segment of the ultimate complement. Applying the General Extrusion threshold, a representative segment would have been approxi- mately 84 employees (280 x 30%). Such a point was not reached until later in October 2008 when the Company record- ed a payroll of over 90 employees.64 Russell, the Charging Party, was hired around that time—on October 20—and ob- tained notice of the Company’s recognition agreement with the Local 707 on that date. There is certainly no evidence that he obtained knowledge before then. 64 GC Br. 54–56. MV PUBLIC TRANSPORTATION 881 Assuming, arguendo, that the limitations period was not re- vived on October 20, when Russell was hired and learned of the recognition agreement, an appropriate earlier accrual date would be on or after October 5, when employees learned of Local 707’s representative status. Under that scenario, the latest a charge would need to be filed to escape the bar of the 10(b) limitation would be April 5. Since Russell filed his charge on March 31, and the Company received notice of the charge on April 2, the charge was timely filed. Based on the foregoing, the dismissal pursuant to Section 10(b) is denied. C. Coercing Employees to Sign Authorization Cards and Dues-Checkoff Forms An employer violates Section 8(a)(1), (2), and (3) of the Act when it requires employees to sign union authorization cards as a condition of employment at a time when there is no lawful union-security clause in effect. It is also a violation of Section 8(a)(2) of the Act to require employees to sign a checkoff card even where a valid union-security clause exists. Dedicated Services, Inc., 352 NLRB at 760. On October 20, the Company directed its employees to sign authorization cards on behalf of Local 707. Rapacioli intro- duced Pacheco, Local 707’s representative, to the trainees, authorization cards were passed out and they were directed to sign the cards as a condition of their employment. Although there was credible evidence that the Company supervisors ex- erted the same pressure on October 6 and November 10, the pleadings were not conformed to such evidence at trial. Ac- cordingly, I do not incorporate them into my conclusions of law. Additionally, in a letter, dated December 22, Rapacioli in- structed all employees to complete Local 707’s membership application and return it to the dispatcher. In January, the Company posted a sign in the drivers’ room at its LaSalle Street facility instructing all employees to sign Local 707’s applica- tion in order to pick up their schedules and specifically stating that “[s]igning is a condition of employment.” Supervisor Duncan reiterated this requirement when asked about it by Rus- sell and added that any employee who did not comply would not permitted to select a driving route and, thus, “could be ter- minated.” Later that day, dispatchers began handing out the union applications and dues-checkoff forms, and they were also placed on a table in the drivers’ room. Under the circumstanc- es, by forcing employees to sign Local 707’s authorization cards and membership applications, the Company violated Section 8(a)(2) and (1) of the Act. D. The Company’s Response to Union Solicitation Outside Its Facility On several occasions in late January or early February, Rus- sell and Baumwoll were soliciting on behalf of Local 726 in front of the Company’s LaSalle Street facility. Rapacioli saw them speak with another driver, Susan Santopaolo, who signed an authorization card for Local 726 and handed it to Baumwoll. Rapacioli called her over and directed her to retrieve her card. Santopaolo complied and handed the card to Rapacioli, who proceeded to rip it up. I did not, however, rely on the testimony of nonemployee Baumwoll that Rapacioli also spat at him and threatened to call the police and inflict unspecified harm upon his family. Russell, the only employee involved in the concert- ed activity, apparently did not observe those particular actions and statements, and they are not actionable here. An employer’s mere observation of open, public union activ- ity on or near its property is not unlawful. Fred’k Wallace & Son, Inc., 331 NLRB 914 (2000). By April, however, Baum- woll was no longer an employee or an applicant seeking em- ployment with the Company. His activity was solely as an advocate for Local 1181. While the evidence reveals that Rus- sell was in the vicinity, there is no credible evidence established that he or any other employee observed or heard about Ra- pacioli’s subsequent interaction with Baumwoll. Accordingly, that portion of the April incident does not constitute a violation of Section 8(a)(1). See Wackenhut Corp., 348 NLRB 1290, 1290 (2006), citing NLRB v. Town & Country Electric, Inc., 516 U.S. 85, 94–95 (1995). There was credible evidence, however, that Russell observed the earlier portion of this incident. He observed Rapacioli take photographs as he and Baumwoll solicited support for Local 1181. In doing so, Rapacioli tended to intimidate Russell, a current employee, and instilled fear of future reprisal if he con- tinued to engage in such behavior. In re Orland Park Motor Cars, Inc., 333 NLRB 1017, 1041 (2001); Athens Disposal Co., 315 NLRB 87, 98 (1994). Similarly, by directing Santopaolo to retrieve her authorization cards from the union and then pro- ceed to rip it up, he coerced or restrained Santopaolo and Rus- sell from exercising their rights under Section 7 of the Act in violation of Section 8(a)(1). Don Thomas Bus Co., 2006 WL 839168 at 9 (Mar. 28, 2006). E. The Company’s Prohibition Against Union Solicitation in April 2009 In April, Russell was at the Company’s South Avenue facili- ty on administrative business and took the opportunity to ap- proach trainees in a classroom during a break. He advocated on behalf of Local 1181. MacElhose, the instructor, was not pre- sent at the time, but a trainee subsequently passed along Rus- sell’s comments to Rapacioli. Russell was called into Rapacio- li’s office the next day and admonished for speaking to the trainees on behalf of Local 1181. Rapacioli expressed his ani- mosity toward Local 1181 and threatened to discharge Russell if he ever did it again in the Company’s facility. An employer may forbid union solicitation during worktime, if that prohibition also extends to other subjects not associated or connected with the employees’ work tasks. Our Way, 268 NLRB 394 (1983). Accord: Jay Metals, Inc., 308 NLRB 167 (1992). However, an employer violates the Act when employ- ees are forbidden to discuss unionization, but are free to discuss other subjects unrelated to work.” Jensen Enterprises, 339 NLRB 877, 878 (2003). Further, in considering whether com- munications from an employer to its employees violate the Act, “the Board applies the objective standard of whether the remark tends to interfere with the free exercise of employee rights. The Board does not consider either the motivation behind the remark or its actual effect.” Miller Electric Pump & Plumbing, 334 NLRB 824 (2001). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 882 In this case, the credible evidence establishes that the train- ees were not in the midst of instruction or any other type of work activity when Russell addressed them. The instructor was not present and they were on a break. Nor was there evidence that the Company had a rule prohibiting nonwork-related con- versation during instructional breaks or any other time while employees were elsewhere in the facility. As such, Rapacioli’s statement conveyed the message that Russell was prohibited from speaking about Local 1181 to anyone—anywhere in the building and at anytime, even outside the classroom. It would not “have been understood as merely curbing social discussions during a busy period.” See Scripps Memorial Hospital Encini- tas, 347 NLRB 52 (2006). Under the circumstances, the Com- pany’s discriminatory prohibition on union discussion while employees were on a break in the training room or anywhere else in the facility, and threatening to discharge an employee if he did it again, violated Section 8(a)(1) of the Act. CONCLUSIONS OF LAW 1. The Company is an employer engaged in commerce with- in the meaning of Section 2(2), (6), and (7) of the Act. 2. Local 707 and Local 1181 are labor organizations within the meaning of Section 2(5) of the Act. 3. By directing and urging its employees or applicants for employment on October 20, 2008, to sign cards authorizing Local 707 to represent them as a condition of employment, and by informing its employees and applicants for employment on December 22, 2008, and early January 2009 that that they had to sign such cards in order to be employed by it and authorizing dues for Local 707 to be deducted from their salary, the Com- pany violated Section 8(a)(2) and (1) of the Act. 4. By recognizing Local 707 as the collective-bargaining representative of its employees, on September 12, 2008, at a time when the Company did not employ a representative seg- ment of its ultimate employee complement and was not yet engaged in its normal business operations, the Company violat- ed Section 8(a)(2) and (1) of the Act. 5. By executing a collective-bargaining agreement with Lo- cal 707 on September 12, 2008, which agreement contained a union-security clause, notwithstanding the fact that Local 707 did not represent an uncoerced majority of the Company’s employees, the Company violated Section 8(a)(1), (2), and (3) of the Act. 6. Having accepted unlawful recognition from the Company on September 12, 2008, receiving unlawful assistance from the Company on October 20, 2008, and entering into and maintain- ing the aforementioned collective-bargaining agreement, Local 707 violated Sections 8(b)(1)(A) and 8(b)(2) of the Act. 7. By photographing employees as they engaged in lawful union activity, directing an employee to retrieve her signed authorization card from Local 1181, confiscating it and ripping it up, and threatening an employee with discharge because he supported Local 1181 and prohibiting him from speaking about Local 1181, the Company violated Section 8(a)(1). 8. The above-described unfair labor practices affect com- merce within the meaning of Section 2(2), (6), and (7) of the Act. REMEDY Having found that the Company and Local 707 have engaged in certain unfair labor practices, I shall recommend that they cease and desist and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Com- pany unlawfully recognized and entered into a collective- bargaining agreement on September 12, 2008, I shall recom- mend that the Company withdraw and withhold all recognition from Local 707 as a collective-bargaining representative of its employees, and order the Company and Local 707 to cease applying to their employees and members the terms of the col- lective-bargaining agreement, or any extension, renewal, modi- fication, or superseding agreement,65 unless or until Local 707 is certified by the Board as such representative. I shall also recommend that the Company and Local 707 be ordered jointly and severally to reimburse their employees and members, pre- sent and former, for dues and initiation fees involuntarily ex- acted from them as a result of the unlawful application of the union-security clause in the collective-bargaining agreement entered into between the Company and Local 707, with interest to be computed in the manner prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987). However, reimburse- ment shall not extend to those employees who voluntarily joined and became members of Local 707 prior to September 12. [Recommended Order omitted from publication.] 65 Nothing in this decision should be construed as requiring the Company to rescind benefits conferred as the result of the unlawful application of contract provisions to them, see, e.g., Frontier Telephone of Rochester, supra at 1278 fn. 24; Kaiser Foundation Hospitals, 343 NLRB 57, 58 (2004).