Abbey'S Transportation Services, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1987

284 N.L.R.B. 698 (N.L.R.B. 1987)

698 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Abbey's Transportation Services, Inc. and New York
Hotel and Motel Trades Council, AFL-CIO.
Cases 29-CA-10749, 29-CA-10829, 29-CA-
11021, and 29-RC-6023
30 June 1987
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN DOTSON AND MEMBERS
BABSON AND STEPHENS
On 28 March 1985 Administrative Law Judge
Wallace H. Nations issued the attached decision.
The General Counsel filed exceptions and a sup-
porting brief, to which the Respondent filed an an-
swering brief. The Respondent also filed cross-ex-
ceptions and a supporting brief.
On 19 August 1985 the Board issued an Order
remanding the proceeding to the judge for him to
make findings of fact and conclusions of law as to
certain alleged violations. On 10 April 1986 the
judge issued the attached supplemental decision.
The General Counsel filed exceptions and a sup-
porting brief, and the Respondent filed an answer-
ing brief. The Respondent also filed a letter resub-
mitting the cross-exceptions it had filed following
the judge's initial decision.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision, the sup-
plemental decision, and the record in light of the
exceptions and briefs and has decided to affirm the
judge's rulings, findings,' and conclusions 2 only to
the extent consistent with this Decision and Order.
The General Counsel has excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance 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 re-
versing the findings.
2 In affirming the judge's conclusion that the Respondent violated Sec.
8(a)(1) of the Act in its questioning of employees during the course of its
investigation of the Union's objections to the election, Chairman Dotson
and Member Stephens rely solely on the fact that the Respondent's attor-
ney, in the presence of the Respondent's vice president and other em-
ployees, asked employees whether they had signed union authorization
cards. Such information was not shown to be relevant to the subject
matter of the Union's objections and, under the circumstances, had a
tendency to interfere with, restrain, and coerce employees in the exercise
of their Sec. 7 rights, in violation of Sec. 8(a)(1) of the Act. Cf. Superior
Container, 276 NLRB 521, 522 (1985) (questioning of employees in prepa-
ration for trial lawful where, inter alia, it did not probe employees' views
concenung the union), Moritz Communications Co., 274 NLRB 200, 201
(1985) (pretrial questioning of employee about union activity not unfair
labor practice where relevant to civil suit alleging age discrimination).
Chairman Dotson also relies on his dissenting opinion in Bill Scott Olds-
mobile, 282 NLRB 1073 (1987) (questioning not coercive where not relat-
ed to employees' own union activities, attitudes, or sentiments). In light
of the above considerations, Chairman Dotson and Member Stephens find
it unnecessary to pass on the judge's discussion of whether the Respond-
This case concerns events occurring during and
after the Union's efforts to organize the Respond-
ent's employees. The Union's representation peti-
tion was filed with the Board on 23 September
1983, 3 and the election was held on 4 November.
The tally of ballots shows 14 votes for the Union
and 33 against, with 5 challenged ballots, a number
insufficient to affect the outcome. The judge dis-
missed all the alleged unfair labor practice viola-
tions except for two violations of Section 8(a)(1) of
the Act. The judge also concluded that the one
violation of Section 8(a)(1) that occurred during
the organizing effort—an announcement that
scheduled wage increases could not be given—
could not have affected the outcome of the elec-
tion. The General Counsel excepts to most of the
alleged violations that the judge dismissed 4 and to
the judge's failure to issue a bargaining order. The
Respondent excepts only to the judge's conclusion
that it unlawfully interrogated its employees at sev-
eral meetings after the election.
Although we adopt the judge's disposition of
most issues, for the reasons stated below, we re-
verse his conclusions that the Respondent's dis-
charge of employees William Restrepo and Hernan
Orrego did not violate Section 8(a)(3) and (1) of
the Act. We also order a new election but decline
to issue a bargaining order for the reasons stated
below.
1. The judge found that the timing of Restrepo's
and Orrego's discharges combined with the fact
that they were the prime movers behind the orga-
nizing campaign gave rise to an inference that their
discharges were motivated at least in part by their
union activity. The judge further found, however,
that the Respondent would have discharged Res-
trepo and Orrego even in the absence of union ac-
tivity. We disagree with the latter finding.
Restrepo and OrregO worked as drivers for the
Respondent, which operates a limousine and char-
ter bus service based in New York City. Restrepo
had worked for the Respondent for 8 years and
was its second most senior driver. On 7 or 8 Sep-
tember, Restrepo and Orrego obtained membership
cards from the Union and began soliciting their co-
workers to sign the cards. Thirty-one employees
signed cards. Restrepo and Orrego also informed
the other drivers of a meeting at the Union's office
ent should have given all investigatory warnings, directions, instructions,
etc., in both English and Spanish.
3 All subsequent dates are in 1983 unless stated otherwise.
4 No exceptions were filed with respect to the judge's dismissal of alle-
gations that the Respondent unlawfully solicited grievances and granted a
benefit during an overtime pay discussion at a 23 September meeting
with employees, unlawfully promised a benefit at the same meeting by
reminding employees of their health insurance coverage, and unlawfully
interrogated and threatened employees Gonzalez and Quintanala
284 NLRB No. 81
ABBEY'S TRANSPORTATION SERVICES

699
on 19 September, which 22 drivers attended. On 23
September the Union filed with the Board a peti-
tion seeking to represent the Respondent's drivers.
About 6:30 that evening Lester Feinberg, the Re-
spondent's president, called Restrepo and Orrego
into his office sequentially and discharged them.
Then, at 7 p.m., Feinberg held a meeting with
some of the Respondent's drivers at which a prob-
lem concerning overtime pay was resolved in a
way suggested by the drivers and Feinberg remind-
ed the drivers that they were eligible for health in-
surance after working for 1 year. Subsequently, the
Respondent conducted a campaign to persuade its
drivers not to vote for the Union.
At the time of his discharge, Restrepo was told
he was being discharged because he had not apolo-
gized for an argument he had with Feinberg about
a week earlier and because Restrepo had com-
plained to drivers of another limousine service that
Feinberg had cheated him. Restrepo believed he
had been paid incorrectly for a charter bus trip he
had driven in late August. He met with Feinberg
about 16 September to discuss the pay question and
got into a heated argument in which Restrepo
called Feinberg a "son-of-a-bitch" and accused him
of stealing his money. Restrepo testified that Fein-
berg had called him a "son-of-a-bitch" first. Steven
Feinberg, the Respondent's vice president, testified
that Lester Feinberg told Restrepo that he expect-
ed him to apologize for his behavior. 5 Restrepo did
not apologize. In the meantime, other employees
reported to Steven Feinberg that Restrepo com-
plained to them that the Respondent had cheated
him, and about 20 September the operator of an-
other limousine service informed Steven Feinberg
that Restrepo had been making the same complaint
to his company's drivers.
At the time of his discharge Orrego was told he
was being discharged because he had refused in-
structions from the Respondent's dispatcher and
general manager, Jose Fernandez. According to
Orrego's uncontroverted testimony, on 21 Septem-
ber, about 4 p.m., he finished a trip to Kennedy
Airport and was told by the dispatcher to return to
the garage. While he was returning to the garage
the dispatcher called him and instructed him to
return to Kennedy Airport, which he did. At the
airport he called the dispatcher again and was told
to continue waiting. After another 15 to 25 min-
utes, he thought the dispatcher had forgotten him,
so he called again. This time he was instructed to
return to the garage. While en route to the garage,
5 Restrepo denied that Feinberg had told him to apologize, and the
judge did not make a finding as to whether such a statement had been
made. For purposes of our decision, we assume, without deciding, that
Restrepo had been told to apologize.
the dispatcher called him and again instructed him
to return to Kennedy Airport. At this point it was
rush hour, and Orrego was in the express lane of
the Van Wyck Expressway. On-ego testified that it
would have taken him a long time to turn around
his vehicle and return to the airport and that many
of the Respondent's night drivers would already be
headed to the airport. For these reasons he replied
to the dispatcher that he was going to continue to
the garage. At the garage he saw the dispatcher,
Jose Fernandez, who was also the Respondent's
general manager. Fernandez said good night to him
and said nothing concerning his refusal to return to
the airport. About 2 months prior to this incident,
Orrego had been discharged for stealing gasoline,
reinstated, discharged again for threatening the em-
ployee who had reported him for stealing gasoline,
and again reinstated.
In assessing the reasons given by the Respondent
for Restrepo's and Orrego's discharges, we note
the delays in the timing of Restrepo's and Orrego's
discharges in relation to the infractions that alleg-
edly prompted the discharges. Orrego's refusal to
follow the dispatcher's instruction to return to
Kennedy Airport took place on 21 September.
When Orrego returned to the garage, he spoke
briefly to Fernandez, the dispatcher and general
manager. Not only did Fernandez not discharge
Orrego at that time, he did not even mention Orre-
go's failure to follow his instructions. Further,
Orrego was not discharged until the end of the day
on 23 September. The Respondent's only explana-
tion for this was that time was needed to prepare
Orrego's paycheck. The Respondent, however, did
not introduce any evidence to show why it took 2
days to prepare Orrego's paycheck or to explain
why nothing was said to Orrego about his failure
to follow instructions at the time of the incident.
Similarly, Restrepo's argument with Lester Fein-
berg during which Restrepo accused Feinberg of
cheating him, called him a "son-of-a-bitch," and,
according to Steven Feinberg, behaved like a luna-
tic, yelling and throwing papers and other objects
in the Feinberg' office, occurred 7 days prior to
his discharge. Yet, despite such conduct by Res-
trepo, the Respondent took no action against him
at the time the conduct occurred.
We fmd unpersuasive the Respondent's addition-
al contention that two intervening events prompted
Restrepo's discharge—Restrepo's failure to apolo-
gize to Lester Feinberg for his behavior and
Steven Feinberg's learning that Restrepo's com-
plaints that the Respondent cheated him had been
voiced not only to other employees of the Re-
spondent but also to drivers of another limousine
service. Restrepo's argument with Lester Feinberg
700 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
took place on 16 September. Restrepo did not
apologize on that day or thereafter. His failure to
apologize was not a separate event that occurred
shortly before his discharge. Rather, the absence of
an apology for his conduct during the argument
existed from the moment the argument ended on 16
September. Accordingly, Restrepo's failure to
apologize for his conduct during the argument did
not occur appreciably closer to the time of his dis-
charge than did the argument itself and cannot rea-
sonably be said to constitute a separate intervening
event.
That Restrepo complained about the Respondent
to drivers from another company is an equally un-
persuasive ground to explain his discharge. No evi-
dence was presented why it mattered to the Re-
spondent if one of its driver complained about his
pay dispute with the Respondent to drivers from
another company. There is no contention that Res-
trepo's complaints constituted disparagement of the
Respondent's product or service within the mean-
ing of NLRB v. Electrical Workers IBEW Local
1229 (Jefferson Standard), 346 U.S. 464 (1953).
Moreover, the record reveals that the Respond-
ent generally tolerated a subtantial amount of em-
ployee misconduct and that Restrepo's and Orre-
go's discharges were disproportionately severe
compared to the discpline given by the Respondent
for other incidents. For example, driver Mario Sa-
lazar was discharged, but then reinstated, when he
returned to the garage drinking a beer after aban-
doning his limousine, which had broken down in
the street. Driver Byron Estrada refused instruc-
tions to make a trip a few days before Orrego com-
mitted a similar infraction. Although Lester Fein-
berg told Estrada that he was going to be dis-
charged for this refusal, Estrada was not disci-
plined at all after he explained the incident to Fein-
berg. Orrego, by contrast, was not permitted to
give an explanation. Seven years earlier Restrepo
also had refused a dispatcher's instructions to pick
up a group of passengers and had been suspended
for 7 or 8 days as a result. Finally, the Respondent
had tolerated fairly severe misconduct by Orrego
only 2 months prior to the discharge at issue here.
Orrego had been discharged for stealing gasoline
from the Respondent but was reinstated after a
week. He was then discharged for threatening the
employee who had reported him for stealing gaso-
line but he was again reinstated after about a week.
Only after Orrego began leading a union organiza-
tional effort did the Respondent allegedly find a
lesser infraction—his refusal to follow a dispatch-
er's instruction to return to the airport—to warrant
his permanent discharge. Also, Restrepo's dis-
charge for his alleged misconduct in failing to
apologize to Lester Feinberg and complaining to
another company's drivers is disproportionate com-
pared to other conduct that the Respondent had
tolerated, particularly considering Restrepo's
length of service with the Respondent.
While, as we have concluded, the timing of Res-
trepo's and Orrego's discharges does not corre-
spond to the occurrence of the conduct that alleg-
edly caused them to be discharged, it is striking
that their discharges came in the midst of a union
organizational effort of which Restrepo and Orrego
were the prime movers. Moreover, while Restrepo
and Orrego allegedly were discharged for separate,
unrelated misconduct that occurred at different
times prior to their discharge date, the Respond-
ent's president linked them by calling them to his
office at the same time and discharging them virtu-
ally simultaneously. Thus, the manner in which
they were discharged suggests that the Respondent
viewed a nexus between them, rather than regard-
ing them as unconnected employees who had en-
gaged in separate incidents of misconduct. Addi-
tionally, the meeting with employees that the Re-
spondent's president held less than a half hour after
Restrepo's and Orrego's discharges appears to have
been designed to cultivate favor among the em-
ployees, in that at the meeting the Respondent re-
solved an overtime pay issue in a manner beneficial
to the employees and reminded employees of their
eligibility for health benefits.
Based on the delays between Restrepo's and Or-
rego's alleged misconduct and their discharges, the
disproportionate severity of the discipline accorded
Restrepo and Orrego compared to the Respond-
ent's treatment of employee infractions on other
occasions, and the fact that Restrepo and Orrego
were discharged simultaneously and at a time
shortly after they, as the prime movers of the orga-
nizing effort, had made substantial progress in card
signing and in generating attendance at a union or-
ganizational meeting, we conclude that the Re-
spondent discharged Restrepo and Orrego because
of their union activities and that the reasons given
by the Respondent for their discharges were pre-
textual. Although there is no direct evidence of the
Respondent's knowledge of Restrepo's and Orre-
go's union activities, we find that the foregoing cir-
cumstances give rise to an inference of such knowl-
edge. See generally NLRB v. Link-Belt Co., 311
U.S. 584, 602 (1941); NLRB v. Long Island Airport
Limousine Service Corp., 468 F.2d 292, 295-296 (2d
Cir. 1972); Penco, Inc., 278 NLRB 1095 (1986);
Marathon LeTourneatt Co., 256 NLRB 350, 363
(1981), enfd. 699 F.2d 248 (5th Cir. 1983); E.
Mishan & Sons, 242 NLRB 1344, 1345 (1979).
ABBEY'S TRANSPORTATION SERVICES 701
In addition, the confluence of circumstances set
forth above—including the fact that Restrepo and
Orrego were the instigators of an organizing effort
that was gaining momentum, their simultaneous
discharges, the pretextual nature of the asserted
reasons for their discharges, and the proximity be-
tween Restrepo's and Orrego's union activities and
the occurrence of their discharges—lead us to infer
that their discharges were motivated by antiunion
animus. See Shattuck Denn Mining Corp. v. NLRB,
362 F.2d 466, 470 (9th Cir. 1966). As the Board
previously has observed, "[t]he same set of circum-
stances may be relied upon to support both an in-
ference of knowledge and an inference of discrimi-
nation." Coca-Cola Bottling Co. of Miami, 237
NLRB 936, 944 (1978). In a like vein, the Second
Circuit has stated in NLRB v. Long Island Airport
Limousine Service Corp., supra, 468 F.2d at 295:
[T]here is no good reason why the two factual
propositions—employer knowledge of general
union activity and employer anti-Union moti-
vation in discharging a particular employee—
need be proved by different types of evidence.
As to each, direct evidence may not be obtain-
able and circumstantial evidence and "infer-
ence of probability drawn from the totality of
other facts" . . . are perfectly proper.
We find in this case that the circumstantial evi-
dence and inferences drawn from the totality of the
facts establish that the Respondent had knowledge
of Restrepo's and Orrego's activities as prime
movers of the union effort and that their discharges
were motivated by the Respondent's antiunion
animus. Moreover, we conclude that the Respond-
ent failed to demonstrate that it would have dis-
charged Restrepo and Orrego absent their activities
in support of the Union. See Wright Line, 251
NLRB 1083 (1980), enfd. on other grounds 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982). Accordingly, contrary to the judge, we
conclude that their discharges violated Section
8(a)(3) and (1) of the Act.
2. In the conclusions of law section of his deci-
sion, the judge dismissed as a group all of the al-
leged unfair labor practices that he had not specifi-
cally sustained. Included in this "catchall" dismissal
was an allegation that on 23 September dispatcher
William Redondo, a supervisor, violated Section
8(a)(1) of the Act by giving employees the impres-
sion that he kept under surveillance union meetings
and activities and the concerted activities of the
employees. However, the judge failed to provide
reasons for this dismissal. We adopt the judge's dis-
missal of this allegation on the basis that the Gen-
eral Counsel failed to prove that Redondo was a
supervisor. The General Counsel merely asserts
that Redondo was a supervisor and fails to provide
any argument or citations to the record on this
point. Moreover, Redondo did not testify at the
hearing. Nevertheless, there is some evidence bear-
ing on Redondo's alleged supervisory status.
Driver Mario Salazar testified that on one occasion
Redondo discharged him when, contrary to Re-
dondo's instructions, he abandoned his limousine
and returned to the garage after the limousine had
broken down. Salazar did not know if Redondo
had ever discharged anyone before. Salazar was re-
instated shortly after his discharge. Another fact
bearing on Redondo's alleged supervisory role is
that he was present in the meeting with President
Lester Feinberg, Vice President Steven Feinberg,
and General Manager Jose Fernandez on 23 Sep-
tember, when Restrepo and Orrego were called in
and discharged, and Estrada was called in and told
he was going to be discharged but ultimately was
not discharged. Aside from his presence, however,
there is no indication what role, if any, Redondo
played in these personnel actions. Finally, a month
or two earlier Redondo had taken part in a meeting
with Fernandez and both Feinbergs in which they
discussed whether to reinstate Orrego. Redondo
and two others voted not to reinstate Orrego, but
they were overridden by Lester Feinberg, who de-
cided to reinstate Orrego.
We find these facts insufficient to establish that
Redondo was a supervisor within the meaning of
Section 2(11) of the Act. The evidence that on one
occasion he told Salazar that Salazar was dis-
charged did not show whether Redondo was
acting within his authority. Nor was it shown
whether Redondo was merely carrying out instruc-
tions that Salazar was to be discharged. Moreover,
Redondo's discharge of Salazar was not shown to
be anything more than an isolated occurrence. In
our view, the disputed evidence concerning Sala-
zar's discharge is not sufficient to support a finding
that Redondo had authority to discharge employ-
ees.
The evidence concerning Redondo's participa-
tion in the two meetings with Fernandez and
Lester and Steven Feinberg shows even less about
Redondo's asserted supervisory status. His mere
presence, without more, at the 23 September meet-
ing does not establish that he was a supervisor
within the meaning of the Act. Additionally, the
fact that at the earlier meeting he voted not to re-
instate Orrego, but his vote was overridden, mili-
tates against fmding supervisory status because it
shows that he was unable to effectively recom-
mend the personnel action that he favored.
Accordingly, we conclude that the General
Counsel failed to prove that Redondo was a super-
702 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
visor; therefore, his statements on 23 September
did not create an impression of surveillance in vio-
lation of Section 8(a)(1) of the Act.
3. We agree with the judge's refusal to issue a
Gissel bargaining order, 6 but only for the following
reasons. In order to obtain a Gissel bargaining
order, the General Counsel must show, among
other things, that the union had the support of a
majority of the employees in the bargaining unit.
Gourmet Foods, 270 NLRB 578 (1984). The Gener-
al Counsel failed to make such a showing here.
The General Counsel alleged that the appropriate
unit for collective bargaining consisted of all full-
time and regular part-time drivers, driver-mechan-
ics, and driver-dispatchers and that about 20 Sep-
tember a majority of the employees in this unit had
designated the Union as their collective-bargaining
representative. The General Counsel introduced
into evidence authorization cards signed by 31 em-
ployees and contends that the unit consisted of 55
employees. The only evidence that the General
Counsel introduced to support this contention was
a payroll list bearing the names of 55 employees.7
The Respondent maintains that this list includes
only the names of its employees at certain locations
and in certain departments and is not a complete
list of all unit employees. Although the Respondent
argued this in its briefs to both the judge and the
Board, the General Counsel has failed to respond
to this argument. The payroll list in issue was in-
troduced into evidence without any witness identi-
fying or describing it. When it was introduced,
counsel for the General Counsel described it only
as "a weekly payroll sheet for the week ending 25
September 1983." The document itself contains no
heading or other language indicating that it was
the Respondent's entire payroll list for the week or
that it includes all of the employees in the unit, nor
was any such representation made when it was in-
troduced. 8 It was described by counsel for the
General Counsel not as the payroll sheet for the
week but only as a payroll sheet for the week. Ac-
cordingly, we conclude that the Respondent's fail-
ure to object to the introduction of this payroll list
does not preclude the Respondent from arguing
that the list does not show the number of employ-
6 NLRB v Gissel Packing Co., 395 U.S. 575 (1969).
7 The list contains the names of 56 employees but indicates that one,
identified only as "John," was discharged on 20 September.
8 The 25 September payroll list consists of five pages. The first page is
headed "NYC Payroll" The second page is headed "Crew Payroll." The
third page appears from its format to be a continuation of the crew pay-
roll. The fourth page is a typed sheet prepared by counsel for the Gener-
al Counsel giving the full names of employees listed on the EWR or
Newark payroll. The fifth page is headed "EWE. Payroll." The record
does not establish that the bargaining uiut was composed entirely of
NYC, Crew, and EWR employees. Accordingly, this document on its
face does not establish the number of employees m the unit.
ees in the unit, as the list was not represented as
establishing this fact. Moreover, it is apparent that,
without more, the list itself does little to prove the
total number of employees in the unit.
The Respondent further argues that certain indi-
viduals not appearing on the 25 September payroll
list are unit employees. The Respondent specifies
by name three driver-mechanics and three driver-
dispatchers as unit employees.° It further indicates
that a number of employees appeared on the Excel-
sior list, who did not appear on the 25 September
payroll list and that these employees are in the
unit. The names of these employees are ascertain-
able by comparing the Excelsior list with the 25
September payroll list. 10 We have checked the
names of the employees who appear on the Excelsi-
or list but not on the 25 September payroll list, and
the names of the six named driver-mechanics and
driver-dispatchers, against the Respondent's annual
payroll records for all of 1983, which are also in
evidence. The 1983 payroll records show the
weeks that each employee worked. By checking
the Respondent's claimed additional unit employees
against the 1983 records, it can be determined
whether these asserted unit employees were em-
ployed by the Respondent on 20 September. This
comparison reveals that six of the additional em-
ployees whom the Respondent claims to be unit
employees were not employed by the Respondent
as of 20 September. 11 However, the remaining
9 The driver-mechanics are Byron Smith, Hector Tejada, and Angel
Yucute. The driver-dispatchers are James Boestfleisch, Leroy Chase, and
Augusto Paini.
" Employees whose names appear on the Excelsior list but not on the
payroll list for the week ending 25 September include the three driver-
mechanics and the three driver-dispatchers named in fn. 9 above, plus the
following individuals; Anthony Augusta, Claudio Pinheiro, Fernando
Pinheiro, Reginaldo Porto, Arnold Smith, Steven Streater, Carlos Suarez,
and Juan Tellechea. The General Counsel introduced a union authoriza-
tion card signed by Porto even though his name does not appear on the
25 September payroll list that the General Counsel introduced to show
the number of employees in the unit.
On the payroll list for the week ending 25 September, some employees
are identified by only their first or last names or by nicknames. By refer-
eiic to the Respondent's 1983 payroll records, which give both the
proper names and mcknames for some employees, and to the Excelsior
list, we have been able to ascertain the full names of these individuals,
which was necessary in determining which employees on the Excelsior
list are not on the 25 September payroll list. Accordingly, the names on
the payroll hst for the week ending 25 September may be clarified as fol-
lows: On page one, the 6th employee listed is Roberto Silva; the 7th is
Luis Gutierrez; 14th, Roberto Caruso; 15th, Mario Salazar, 22d, ,Carlos
Rodriguez; 25th Marcelo Ramirez; and 27th Fernando Rodriguez. On
page two, the employees listed are Louis Kerr, John (see fn. 7, above),
Rita Feher, Victor Feliciano, Edgar Perez, Roosevelt Green, Frank
Taylor, Luis Estrada, and Aldon Butler. On page three, the employees
listed are Charles Hutcherson, Mario Diaz, Shahriar Hakimian, and
Ralph Colon. The names on the last page are clarified on a typed page
that the General Counsel introduced as part of the exhibit See fn. 8,
above.
11 Anthony Augusta, Claudio Pinheiro, Fernando Pinheiro, Byron
Smith, Hector Tejada, and Juan Tellechea did not begin working for the
Respondent until the week ending 2 October.
ABBEY'S TRANSPORTATION SERVICES 703
eight were employed on 20 September." Thus, on
this record we cannot make a finding that they
were not in the unit. If these 8 are added to the 55
employees on the 25 September payroll list whom
the General Counsel contends make up the unit,
the total number of unit employees is 63, of which
the 31 employees who signed cards do not consti-
tute a majority.
The burden is on the General Counsel to show
that a majority of employees supported the Union.
The 25 September payroll list, in the manner it was
introduced, provides some indication of the general
size of the unit but does not in fact establish the
total number of unit employees. The Respondent
did not merely point out the inadequacy of the
payroll list as proof of the number of unit employ-
ees. It went on to identify individuals, not on the
weekly payroll list, who it contends were in the
unit. Record evidence corroborates that eight of
these individuals were employed by the Respond-
ent at the relevant time. If at least seven of these
eight individuals were in the unit, then the number
of employees who signed union authorization cards
does not constitute a majority. Under these circum-
stances, we find that the General Counsel failed to
meet her burden of proving that the employees
who supported the Union constituted a majority of
the employees in the bargaining unit, which is a
prerequisite for issuance of a Gissel bargaining
order. Accordingly, we decline to issue a bargain-
ing order.
4. We have found that the Respondent violated
Section 8(a)(3) and (1) by discharging the prime
movers of the union campaign, Restrepo and
Orrego. Additionally, the judge concluded that the
Respondent violated Section 8(a)(1) by telling em-
ployees that previously scheduled wage increases
could not be given prior to the election, and the
Respondent does not except to this conclusion. We
fhid that the Respondent's conduct that comprised
these violations also consitituted objectionable con-
duct that warrants setting aside the election." Ac-
cordingly, we shall direct that a second election be
conducted.
12 These employees are James Boestfleisch, Leroy Chase, Augusta
Pam, Reginald° Porto, Arnold Smith, Steven Streater, Carlos Suarez,
and Angel Yucute Yucute worked from the week ending 8 May through
the week ending 3 July He did not work again until the week ending 2
October but then worked during every week in October, 2 weeks in No-
vember, and 1 week in December. From the record we cannot deternune
whether as of 20 September he was on leave or whether he had resigned
and was rehired m October. Thus, we are unable to make a finding that
he was not employed by the Respondent on 20 September
13 We need not pass on the judge's conclusion that the statement con-
cerning the withholding of wage increases in itself did not constitute ob-
jectionable conduct warranting setting aside the election
AMENDED REMEDY
Having found that the Respondent has violated
the Act by discharging employees William Res-
trepo and Hernan Orrego because of their union
activities, we shall, in addition to the remedy pro-
vided by the judge, order the Respondent to cease
and desist from discharging or discriminating
against employees because of their union activities
and to offer reinstatement to Restrepo and Orrego
and make them whole for any loss of earnings and
other benefits. Backpay shall be computed on a
quarterly basis from the date of discharge to the
date of proper offer of reinstatement, less any net
interim earnings, as prescribed in F. W. Woolworth
Co., 90 NLRB 289 (1950), plus interest as comput-
ed in New Horizons for the Retarded." We also
shall order the Respondent to expunge from its
files any references to the unlawful discharges of
Restrepo and Orrego and to notify them in writing
that this has been done and that the discharges will
not be used against them in any way.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Abbey's Transportation Services, Inc., its
officers, agents, successors, and assigns, shall take
the action set forth in the Order as modified.
1. Insert the following as paragraph 1(a) and re-
number the succeeding paragraphs.
"(a) Discharging or discriminating against any
employee because of the employee's activity on
behalf of New York Hotel and Motel Trades
Council, AFL-CIO or any other union."
2 Insert the following as paragraphs 2(a)
through (c) and renumber the succeeding para-
graphs.
"(a) Offer William Restrepo and Hernan Orrego
immediate and full reinstatement to their former
jobs or, if those jobs no longer exist, to substantial-
ly equivalent positions without prejudice to their
seniority or any other rights or privileges previous-
ly enjoyed, and make them whole for any loss of
earnings and other benefits suffered as a result of
the discrimination against them, in the manner set
forth in the remedy section of the decision.
"(b) Remove from its files any reference to the
unlawful discharges and notify the employees in
writing that this has been done and that the dis-
charges will not be used against them in any way.
14 In accordance with our decision m New Horizons for the Retarded,
283 NLRB 1173 (1987), interest will be computed at the "short-term Fed-
eral rate" for the underpayment of taxes as set out in the 1986 amend-
ment to 26 U S.C. § 6621.
704 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
"(c) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order."
3. Substitute the attached notice for that of the
administrative law judge.
IT IS FURTHER ORDERED that the election held
on 4 November 1983 in Case 29-RC-6023 be set
aside and the case remanded to the Regional Direc-
tor for Region 29 for the purpose of conducting a
new election.
[Direction of Second Election omitted from pub-
lication.]
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT discharge or discriminate against
our employees because of their activities in support
of New York Hotel and Motel Trades Council,
AFL-CIO, or any other union.
WE WILL NOT inform our employees during a
union organizing campaign that we cannot pay pre-
viously scheduled wage increases until after the
election.
WE WILL NOT interrogate our employees and re-
quire them to give a statement without giving our
employees all the assurances and safeguards re-
quired by law.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer William Restrepo and Hernan
Orrego immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to
their seniority or any other rights or privileges pre-
viously enjoyed, and WE WILL make them whole
for any loss of earnings and other benefits resulting
from their discharge, less any net interim earnings,
plus interest.
WE WILL notify each of them that we have re-
moved from our files any reference to his dis-
charge and that the discharge will not be used
against him in any way.
ABBEY'S TRANSPORTATION SERVICES,
INC.
Lynn Neugebauer, Esq., for the General Counsel.
Jeffery Bernbach, Esq. and Bruce J. Robbins, Esq., of New
York, New York, for the Respondent.
Mary E. Moriarty, Esq., of New York, New York, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
WALLACE H. NATIONS, Administrative Law Judge.
Based on charges filed by New York Hotel and Motel
Trades Council, AFL-CIO (the Union) on September
30, October 26, and December 9, 1983, and February 6,
1984, complaints were issued by the Regional Director
for Region 29. As a result of objections to an election
held on November 4, 1983, a report was issued by the
Regional Director. Ultimately the Regional Director
issued a second report on objections, and ordered con-
solidated cases and notice of hearing to each of the cap-
tioned proceedings on February 28, 1984, which was
upheld on exceptions by order of the Board dated May
24, 1984. The consolidated complaints allege a number of
violations of Section 8(a)(1), (3), and (5) of the Act and
seek generally the issuance of a bargaining order. Re-
spondent's answer denies any violations of the Act.
A hearing was held before this judge in Brooklyn,
New York, and New York, New York, on August 29,
30, and 31 and September 4 and 5, 1984. Briefs were re-
ceived from both Respondent and the General Counsel
on or about October 25, 1985.
I. THE BUSINESS OF RESPONDENT
Abbey Transportation Service, Inc. (Respondent)
maintains its principal office and place of business in
Long Island City in the borough of Queens, city and
State of New York, where at all times material, it has en-
gaged in providing charter bus services and limousine
transportation services and related services in interstate
commerce. Respondent has admitted the jurisdictional al-
legations of the consolidated complaints and I find that it
is an employer within the meaning of the Act and that it
will effectuate the policies of the Act to assert jurisdic-
tion herein.
ABBEY'S TRANSPORTATION SERVICES 705
II. THE LABOR ORGANIZATION INVOLVED
New York Hotel and Motel Trades Council, AFL-
CIO is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts and Summary of Allegations
Respondent provides transportation to and from the
three New York City area airports—LaGuardia, Kenne-
dy, and Newark—as well as other bus services. On
August 27, 1983, 1 Respondent's driver, William Res-
trepo, made a bus trip to Washington, D.C. for Martin
Luther King Jr. Day. When Restrepo received his pay
for that trip, he believed he had received an incorrect
amount. He, thereafter, took actions that resulted in his
termination on September 23. The termination is alleged
to have been discriminatory because of union activity
that will be discussed in detail later. On September 7 or
8, Restrepo and Hernan Orrego, another driver, went to
the Union and obtained blank membership cards. Res-
tropo and Orrego then solicited other drivers to sign the
membership cards and obtained a number of signed
cards.
It is alleged that on or before September 23, Respond-
ent's general manager, Jose Fernandez, asked his brother,
one of the other company drivers, what he thought of
the Union. This conversation is relied on by the General
Counsel as establishing the date of Respondent's knowl-
edge of the union organizing activity.
On September 19, approximately 22 drivers attended a
meeting at the union offices. Restrepo and Orrego had
informed the drivers of this meeting.
On September 23, as stated above, Respondent dis-
charged Restrepo and on the same date discharged
Orrego. Both discharges are alleged to have been for dis-
criminatory reasons.
It is alleged that also on September 23, Supervisor
William Redondo allegedly told an employee that Res-
trepo and Orrego , were discharged because they had
made a lot of trouble and that the Company's owner was
watching them. On September 23, the Union filed a peti-
tion in Case 29-RC-6023 and, on the same date, Lester
Feinberg, Respondent's president, called a meeting of
Respondent's drivers at which it is alleged that he solicit-
ed grievances, agreed to raise employees' salaries, and
unlawfully offered other benefits. In October, it is al-
leged that Feinberg called another meeting of drivers
and told them he could not give previously scheduled
wage increases until the union election was over.
It is alleged that Respondent began an antiunion cam-
paign by distributing letters to drivers with their pay-
checks and engaged in instances of interrogation, threats,
and warnings Each of the alleged instances will be dis-
cussed below.
The Union lost the election, held on November 4, by a
vote of 14 to 33 and filed objections to Respondent's
conduct. In response to the report on objections, Re-
spondent, by its vice president, Steven Feinberg, and its
All dates are m 1983 unless otherwise indicated
attorney, Jeffery Bernbach, held meetings with employ-
ees on three occasions in January 1984. It is alleged that
at these meetings the employees were questioned regard-
ing events described in the Report of Objections and
were not given proper warnings in accordance with
Board law.
B. Alleged Unlawful Discharge of Restrepo and
Orrego and the Layoff of Fioravante Ventanilha
The General Counsel alleges that Respondent violated
Section 8(a)(3) of the Act when it discharged William
Restrepo and Hernan Orrego. Respondent counters that
both discharges were made for cause and without knowl-
edge of the employees' union activity. As noted above,
Restrepo took a charter bus trip to Washington, D.C., in
late August and shortly thereafter became dissatisfied
about the amount of pay he received for the trip. Res-
trepo communicated his dissatisfaction to fellow drivers
advising them that management had cheated him on the
pay for the trip. On or about September 16, Restrepo
met with Lester Feinberg in Feinberg's office to discuss
the pay and got into an argument. Although there is a
dispute in the record concerning whether Restrepo,
during this argument, threw papers around the office and
otherwise disturbed its physical property, there is no
question that he called Feinberg a "son-of-a-bitch" and
accused him of stealing his money. Restrepo offered as
reason for the outburst that he had been called a "son-of-
a-bitch" by Lester Feinberg. Steven Feinberg was a wit-
ness to the argument and denies that his father made the
statement to Restrepo. According to the testimony of
Steven Feinberg, Lester Feinberg told Restrepo that he
expected him to apologize for his behavior, but Restrepo
left the meeting yelling and screaming.
Thereafter, another attempt was made by the Compa-
ny's secretary to explain how the pay for the involved
trip had been calculated, but Restrepo was not satisfied
with the explanation. Restrepo did not apologize to
Lester Feinberg and continued to complain to Abbey's
drivers as well as drivers of other companies that he had
been cheated. It is the testimony of Steven Feinberg that
the event that triggered Restrepo's discharge was when
he learned from the owner of another limousine compa-
ny that Restrepo had made such statements to his driv-
ers. Restrepo was called into Feinberg's office and told
that he was being fired because he did not apologize to
Lester Feinberg for the earlier argument and because he
spoke to another company's drivers about the incident.
With respect to the discharge of Orrego, Steven Fein-
berg testified that Orrego refused a direct order from a
supervisor on September 21 for which he was discharged
on September 23. His discharge followed two instances
within 2 months preceding his discharge in which
Orrego was suspended, discharged, and reinstated. These
instances involved stealing company gasoline and threat-
ening a fellow employee for reporting the theft to
Abbey's management.
At the time of the discharges, Respondent contends
that it had no knowledge of union activity among its
drivers. Though the General Counsel has no direct proof
that Respondent did have such knowledge, she makes
706 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the argument that it would be inconceivable for manage-
ment to have learned of Restrepo's complaints about his
pay from other drivers at the time that Restrepo was
passing out union authorization cards without at least
one of the drivers mentioning this fact to management.
She also points to the timing of the discharge on Septem-
ber 23 to support her contention that union animus was
the motivating factor in the discharges, pointing out that
it would have been logical for Restrepo to have been
fired on the date of the argument with Feinberg and for
Orrego to have been fired on the date that he refused to
obey an order from a supervisor. The General Counsel
also notes that Restrepo was the most senior driver on
Respondent's staff and with respect to Orrego, another
employee, Brian Estrada, refused a trip on September 30
and was not disciplined after being allowed to state the
circumstances for his refusal. Orrego was not allowed an
opportunity to explain the circumstances of his refusal.
I would agree with the General Counsel that the
timing of the discharges combined with the fact that
Restrepo and Orrego were the prime movers behind the
union organizing campaign would give rise to an infer-
ence that their discharges were motivated at least in part
by their union activity. I find, however, that Respondent
had ample cause for discharging both employees and,
based on the testimony, would have discharged both em-
ployees even in the total absence of union activity.
Therefore, / will recommend that the complaint, insofar
as it alleges unfair labor practice on the part of Respond-
ent in discharging Restrepo and Orrego, be dismissed.
Fioravante Ventanilha was hired by Respondent on
July 31, and assigned as a Newark driver. Ventanilha
signed a union authorization card on September 10 and
attended a union meeting in October. On October 24,
Ventanilha was laid off, which was 11 days before the
tufion election. Steven Feinberg and Jose Fernandez tes-
tified that in October business at the Newark Airport
slowed and that they sold three vehicles used to service
this airport. Four other vehicles were returned to suppli-
ers not to be returned to Abbey's until spring and an-
other vehicle was taken out of service for use as a shop
vehicle. Feinberg testified that he instructed Fernandez
to reduce the complement of Newark drivers by laying
off the three junior men. Fernandez accomplished this
reduction in staff through the voluntary resignation of
Oscar Nievas, who was returning to Columbia, and
Jaime Brito who was also returning to his home in South
America, and a layoff of Ventanilha.
The General Counsel asserts that Ventanilha's layoff
was for unlawful reasons and in support thereof points
out that he signed a union authorization card on Septem-
ber 10 and attended a union meeting in October. There is
no other connection shown between Ventanilha and the
organizing campaign. The General Counsel also points
out, based on payroll records of Respondent, that there
were five Newark drivers with less seniority than Ven-
tanilha at the time of his layoff, and that none of the five
men were card signers for the Union. These payroll
records were not subject to examination or cross-exami-
nation during the course of the hearing and in a reply
brief, which is accepted for the purpose offered, Re-
spondent argues that the payroll records do not show
what the General Counsel asserts.
I credit Respondent's position with respect to the
layoff of Ventanilha. There is no showing that Respond-
ent had knowledge of Ventanilha's signing of an authori-
zation card or attending a union organizing meeting.
There is also no showing that there was any layoff of
other card signers in an attempt by Abbey to rid itself of
union adherents. I find that from the evidence Respond-
ent's layoff of Ventanilha was consistent with its action
in reducing its fleet and its staff by the voluntary resigna-
tions of the other two Newark drivers. I find that Re-
spondent did not violate the Act by laying off Ventart-
ilha.
C. Alleged Violations of Section 8(a)(1) By
Respondent's September 23 and October Meetings with
Employees
Respondent called a meeting with its New York City
drivers on the evening of September 23, the date that the
petition was filed. The General Counsel suggests that
Respondent, at this time, knew of the union organizing
campaign, though Respondent denies such knowledge
and there is no proof that it did have knowledge of the
campaign on September 23. I find that it is not important
in the context of the allegations with respect to the meet-
ing whether Respondent had knowledge or not as its ac-
tions do not constitute violations of the Act in any event.
At the meeting, Lester Feinberg informed the drivers
gathered that because of a Federal Wage and Hour Divi-
sion investigation concerning overtime pay, the Compa-
ny wanted to put everyone on a timeclock for both
winter and summer. In the winter time, most of the men
would only work 32 to 34 hours in a 5-day week and in
the summer work 50 to 55 hours in a 5-day week.
One of the drivers, Danny Besora, asked that the
Company establish a policy of paying a flat number of
hours throughout the year to even out the earnings. At
that point in the meeting, Lester Feinberg, his son, and
another management official left and let the drivers dis-
cuss the situation themselves. Respondent's management
briefly discussed the matter among themselves and decid-
ed that if the drivers were paid on a 48-hour-per-week
basis year round, the wages paid the drivers should equal
what they had been getting. However, the drivers would
get an advantage initially because the slow season was
approaching. On returning to the meeting, the drivers
and management agreed that the proposal was acceptable
and it was implemented,
The General Counsel asserts that taking the suggestion
of driver Besora violates the Act in that it is a solicita-
tion of a grievance and, further, that the granting of the
suggested solution to the problem was a violation of the
Act as it constitutes an unlawful benefit during the
course of an organizing campaign. I disagree. The evi-
dence is clear that the Company did have a problem
with respect to overtime pay and agreed with the Feder-
al Wage and Hour Division that changes in its wage
structure would be made. The investigation took place in
August. The week prior to the September 23 meeting,
and clearly before the Company had knowledge of the
ABBEY'S TRANSPORTATION SERVICES 707
organizing campaign, its management met with its
Newark drivers and worked out a solution where those
drivers went "on the clock." I think it is clear that the
Company was seeking a solution to its problem with the
Wage and Hour Division prior to any knowledge of the
union organizing campaign and its solution both with the
Newark drivers and the New York City drivers was a
valid attempt to solve its overtime problem. It was not
an action calculated to have an effect on the organizing
campaign, if in fact it had knowledge of the campaign at
that time Therefore, I do not find that the Company has
violated the Act by acting on driver Beasora's suggestion
and implementing the new form of payment.
Also at the September 23 meeting, Lester Feinberg in-
formed the men that they were entitled to Blue Cross-
Blue Shield benefits under which the employee pays half
the premiums and the Company pays half after 1 year of
employment. The testimony of Steven Feinberg indicates
that a similar announcement was made at the Company's
meetings that were held at least three times per year.
The Company had a policy for several years of provid-
ing such benefits for employees who had been working
for 1 year. The General Counsel asserts that it had been
Respondent's policy not to give Blue Cross benefits to
employees with only 1 year on the job, citing again the
Company's 1983 payroll records. As noted earlier, these
payroll records were entered into the record without ex-
amination or cross-examination, and I find it difficult to
accept proof from the records under these circumstances.
From the records, the General Counsel contends there
were at least four drivers with over 1 year of employ-
ment at Respondent prior to the September 23 meeting
and only one began to carry Blue Cross in November
1983. I do not fmd that this information proves the point
that the General Counsel seeks to make. Whether the
men carried the insurance is as much their choice as it is
management's policy. Other drivers offering evidence in
this record indicated that they had been carried for some
time on Blue Cross and that such benefits were available
to them after 1 year. I fmd that the Blue Cross coverage
was a preexisting company benefit and that Feinberg's
reminding the drivers of availability of the benefit cannot
be considered as an illegal promise of benefit and, thus,
no violation occurred in this regard.
At the October meeting, a time when the Company
had certain knowledge of the union organizing activity,
Lester Feinberg advised drivers who were due for raises
that such raises could not be given because of the up-
coming union election. It was company policy to give
drivers raises after their first year or 18 months on the
job and some of the Company's drivers were due for
raises under this policy. I agree with the General Coun-
sel's contention that the failure to give the raises by the
Employer was unlawful. It was the Employer's duty to
proceed as it would in the absence of a union campaign
and may have lawfully implemented benefits that had
become conditions of employment by virtue of a prior
commitment. Telling the employees that it may not im-
plement a wage increase because the Union might lead
employees to conclude that there is a penalty attached to
the exercise of their right to choose a union would be
violative of Section 8(a)(1) of the Act. I do not believe,
however, that the intention of the Company's manage-
ment was to coerce the drivers and instead believe that it
was a mistake in understanding of what the law required
them to do. Although I have found that the Company
has violated the Act in this regard, I do not find the vio-
lation so serious that it could in any manner have affect-
ed the outcome of the election.
D. Allegations of Unlawful Interrogation, Threats, and
Warnings by Respondent
In October, Respondent began a campaign by distrib-
uting to drivers letters setting out Respondent's position.
The General Counsel alleges that Respondent also un-
lawfully committed incidents of interrogation, threats,
and warnings. It is alleged that Jose Fernandez ques-
tioned Hector Gonzalez and another driver, Oscar
Nieves, in November whether he could count on their
votes. Another driver, Vincente Quintanilla, testified that
Fernandez also asked him during the week prior to the
election whether he could count on his vote. He said
that Respondent's vice president, Steven Feinberg, also
questioned him about his opinion of the Union and told
Quintanilla that in his opinion the Union was crooked
and if the Union won the election, Respondent would
close or sharply curtail its operations by firing most of its
drivers. Feinberg and Gonzalez denied the allegations.
Respondent points out that Hector Gonzalez had been
discharged 1 month after the election for having an un-
authorized passenger in a company vehicle. He had
never told anyone from the Union or the Board about
the alleged interrogation and alleged conduct when filing
an unfair labor practice charge relating to his discharge.
This charge was dismissed by the Board. Respondent
also notes that Gonzalez' assertion that Jose Fernandez
asked Nieves for his support is not credible as Nieves
had told Gonzalez, Byron Estrada, Jose Fernandez, and
others that he would be returning to Columbia before
the election, which he did. Based on the demeanor of
witnesses Feinberg, Gonzalez, and Fernandez and on the
surrounding circumstances, I credit the denial of Fernan-
dez and Feinberg that the alleged conversations with
Gonzalez took place. Thus, I find no violation of the Act
as alleged.
Feinberg and Fernandez also denied the alleged con-
versations with employee Quintanilla. I credit their
denial. I find that Quintanilla was an evasive witness
who testified several times that he could not understand
English and that during the taking of an affidavit by Re-
spondent's attorney in response to objections, he could
not understand what the attorney was saying as it was in
English. On the other hand, through an interpreter at the
hearing, he testified as to having heard Steven Feinberg,
speaking in English, make the allegedly unlawful state-
ments. I cannot find that the witness can have it both
ways and discredit his testimony with respect to the al-
leged Fernandez and Feinberg comments. Approximately
15 days before the election, it is alleged that General
Manager Fernandez told employee Henry Gonzalez that
he should talk his brother (Hector Gonzalez, a driver)
into voting against the Union because if his immigration
708 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
papers were not in order he should not vote for the
Union.
Abbey's driver, Henry Gonzalez, also tesified that
Steven Feinberg and Jose Fernandez told him that the
Company would close if the Union got in. Feinberg and
Fernandez denied that they ever made such statements. I
again credit their denial. In addition to the demeanor of
the witnesses, the circumstances strongly support Fein-
berg and Fernandez' denial. At the time the closure
threat was allegedly made, it was known in the Compa-
ny that Abbey's was planning to open desks at LaGuar-
dia and Kennedy airports that would increase the Com-
pany's business. With respect to the alleged threat by
Feinberg, it supposedly occurred at the site of the elec-
tion within clear view of both the Board's agent and the
union agent. Henry Gonzalez' testimony in this proceed-
ing appeared to me less than credible and prompted pri-
marily to aid his brother's case against Respondent.
Having credited the testimony of Feinberg and Fernan-
dez that such statements were not made, I find that no
violation occurred.
In October, it is alleged that Vice President Feinberg
told employee Ventanilha that if he did not have his
papers he could not vote for the Union and additionally
that it would take time for benefits to come through with
the Union whereas he could give the drivers Blue-Cross
benefits right away. Even though Feinberg denies having
made such statements, I do not think that if such state-
ments were made they would rise to the level of a
threat.
On November 3, the day before the election, Vice
President Feinberg asked driver Salazar if November 4
was his day off. When Salazar replied that it was, Fein-
berg said that was good, "It is better that you didn't
show up if you didn't have to." Feinberg testified that he
responded to an inquiry by Salazar whether he had to
come in on his day off by telling him to do what he
wanted. I do not fmd that Feinberg's reply amounts to a
threat within the meaning of the Act.
E. Alleged Illegal Postelection Interrogation by
Respondent and its Attorney
In response to the Regional Director's Report on Ob-
jections, Respondent set up meetings with employees,
Vice President Feinberg, and Attorney Jeffery Bembach.
The meetings took place on three occasions in January
1984. Approximately 15 employees were taken to Bern-
bach's office where they were questioned as a groUp re-
garding events described in the Regional Director's
report in the presence of Vice President Feinberg. All in-
structions regarding safeguards given to the drivers in
line with the requirements of Johnnie's Poultry Co., 146
NLRB 770 (1964), and other cases were given in Eng-
lish.
There is a dispute in the record among some of the
drivers about what assurances were given by Attorney
Bernbach during the course of these meetings. For other
reasons, I find that the assurances and directions given
by Bernbach were ineffectual and inadequate under the
circumstances in which they were given. The setting for
the meetings was obviously coercive and had the appear-
ance of intimidation as they were group meetings with
the Company's vice president, a strange attorney, and
the situation where the Union had lost the election. Al-
though some of the drivers do speak fluent English, it
was apparent to me at the hearing that many did not. At
the very least, all warnings, directions, and assurances
given by Respondent to the employees in these circum-
stances should have been given both in English and in
Spanish so that it would be clear that all the employees
understood them. If the record made anything clear, it is
the fact that at least some of the drivers who signed affi-
davits did not understand what they were signing.
At the meetings, Bernbach asked the employees for
their names, how long they had been employed by Re-
spondent, and whether they had signed a union authori-
zation card. Statements were typed in English and given
to the employees to read. Many of the employees could
not understand what was said in the statements because
they did not read English well. I think the Board's
guidelines in the case Johnnie 's Poultry, supra, were not
followed in this instance and that a violation of Section
8(a)(1) has occurred.
F. Closing Conclusions and Ruling on Ojections in
Case 29-RC-6023
Based on the evidence and my credibility findings with
respect to the evidence, I have found that Respondent
has violated Section 8(a)(1) of the Act only in informing
employees that previously scheduled wage increases
could not be given during the pendancy of the union
campaign and in its manner of interrogating witnesses in
response to the Regional Director's Report on Objec-
tions well after the election. In all other respects, I have
found that Respondent has not violated the Act as al-
leged in the complaint. Under these circumstances
though, I will require that Respondent cease and desist
from the activity found to be in violation of the Act and
to post an appropriate notice, I do not find that Re-
spondent's actions have affected the fairness of the elec-
tion or its outcome and thus will not disturb the election
results. In a similar manner, I do not find that Respond-
ent's violations of the Act were so serious as to require
the issuance of a bargaining order, and I shall order the
results of the election certified.
IV. THE REMEDY
Having found that the Respondent, Abbey Transporta-
tion Services, Inc., has violated the Act by informing its
employees that it was withholding previously scheduled
wage increases until after a union election and by coer-
cively interrogating employees and obtaining a statement
from them in response to the Regional Director's Report
on Objections, I order Respondent to cease and desist
from such unlawful conduct and to post appropriate
notice.
CONCLUSIONS OF LAW
1.Abbey's Transportation Services, Inc. is an employ-
er within the meaning of Section 2(6) and (7) of the Act.
2. New York Hotel and Motel Trades Council, AFL-
CIO is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
ABBEY'S TRANSPORTATION SERVICES 709
3. Respondent informed its employees at a meeting
held during the course of a union organizing campaign
prior to election that it could not pay previously sched-
uled wage increases during the pendancy of the election
in violation of Section 8(a)(1) of the Act.
4. Respondent, after the election, coercively interro-
gated its employees and required them to sign a state-
ment without affording them the safeguards provided by
Board law in violation of Section 8(a)(1) of the Act. The
unfair labor practices as set forth above will affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
5. Respondent did not commit any other unfair labor
practices as alleged in this proceeding.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed2
ORDER
The Respondent, Abbey's Transportation Services,
Inc., Long Island City, New York, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Informing its employees during the course of a
union organizing campaign that it cannot pay previously
scheduled wage increases until after the election.
(b) Coercively interrogating its employees and requir-
ing them to give a statement without giving its employ-
ees the assurances and safeguards required by Board law.
(c) In any like or related manner interfering with, re-
straining or coerceing employees in the exercise of the
rights guaranteed them in Section 7 of the National
Labor Relations Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post at its places of business in New York, New
York, the attached notice marked, "Appendix." 3 Copies
of said on forms provided by the Regional Director for
Region 29, after being signed by Respondent's authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive
days in conspicuous places including all places where no-
tices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to ensure that the no-
tines are not altered, defaced, or covered by any other
material.
(b) Notify the Regional Director in writing within 20
days from the date of this Order as to what steps the Re-
spondent has taken to comply.
2 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided m Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
3 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 Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
Lynn Neugebauer, Esq., for the General Counsel.
Jeffery Bernbach, Esq. and Bruce J. Robbins, Esq., of New
York, New York, for the Respondent.
Mary E. Moriarty, Esq., of New York, New York, for the
Charging Party.
SUPPLEMENTAL DECISION
WALLACE H. NATIONS, Administrative Law Judge.
On 28 March 1985 I issued a decision in the above-enti-
tled case. The General Counsel filed exceptions and a
supporting brief, to which the Respondent, Abbey's
Transportation Services, Inc. (Abbey's), filed an answer-
ing brief. Abbey's also filed cross-exceptions and a sup-
porting brief.
On 19 August 1985 the Board issued an order remand-
ing this proceeding to me for further consideration re-
garding certain 8(a)(1) allegations of the complaint and
whether such allegations, if proved, would constitute ob-
jectionable conduct that would warrant setting aside the
election involved in the proceeding and directing the is-
suance of the Supplemental Decision. This Supplemental
Decision is issued in response to the Board's Order of 19
August 1985. As the Decision is supplemental in nature,
it adopts and makes a part hereof my Decision issued on
28 March 1985 to the extent that it is not inconsistent
with the supplemental findings of fact and conclusion of
law made herein.
I. ISSUES FOR FURTHER CONSIDERATION
A. Was Conversation Between Henry and Jose
Fernandez Unlawful
In regard to allegations contained in the complaint
concerning unlawful interrogation, the General Counsel
adduced evidence that employee Henry Fernandez, who
had signed a union authorization card, testified that
while alone in the office of General Manager Jose Fer-
nandez, Jose asked him what he thought about the Union
and Henry replied he did not know and everybody was
talking about it. Jose stated he did not think the Union
would go anyplace and Henry replied he did not think
so either. As noted in the Order of Remand, Jose admit-
ted discussing the Union with Henry a few days after the
Union filed a petition to represent Abbey's employees,
but, according to Jose, it was Henry who started the
conversation by asking if he knew that the drivers had
applied for the Union.
Other than the question of who started the conversa-
tion, there is no doubt that it occurred. However, even
crediting, which I do, Henry Fernandez' version of the
conversation, I cannot find that it constitutes a violation
of Section 8(a)(1) of the Act or constitutes objectionable
conduct that warrants setting aside the election. Henry
and Jose Fernandez are brothers and converse on a
number of topics on a regular basis. Jose estimated in re-
sponse to a question from the General Counsel that the
two conversed at least 5 days a week. I can find nothing
in the conversation to be coercive. There is no instruc-
tion from Jose to Henry not to vote for or support the
Union and, for that matter, no question by Jose to Henry
whether Henry was in support of or against the union
organizing effort. Looking at the totality of the conver-
710 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sation and the relationship of the participants, I find that
the conversation was nothing more than a casual conver-
sation between brothers about a topic of obvious interest
at the workplace and does not constitute unlawful inter-
rogation nor objectionable conduct.
B. Allegations Regarding Conversation Between
Employees Fioravante Ventanilha and Jose Fernandez
As noted in the Order of Remand, employee Fiora-
vante Ventanilha testified that, in early October 1983,
General Manager Jose Fernandez told him that if the
Union came in, work would be slower, fewer drivers
would be working, and it would be better if he "signed
for Abbey's rather than for the Union." Noting that Fer-
nandez testified he did not threaten the employees,
though he did not specifically address the alleged state-
ments of Ventanilha, the Order of Remand requires a
credibility determination be made with respect to the al-
leged statements. Based on the demeanor of the two in-
volved witnesses, I discredit Vantanilha's allegation that
the conversation took place. The content of the conver-
sation was unlike anything that was alleged to have been
said by Fernandez to any other employee. As I have
found from a credibility standpoint, the conversation did
not take place and it could not constitute a violation of
the Act, nor could it constitute objectionable conduct af-
fecting the outcome of the election.
C. Allegations that Employee Ventanilha Was
Threatened by Feinberg
As noted by the Board's order of remand, Ventanilha
also testified that in October 1983 Abbey's executive vice
president, Steven Feinberg, told them that any driver
who did not have his papers could not vote for the
Union and that Feinberg would give him Blue Cross-
Blue Shield insurance right away, but if he was going to
wait for the Union it was going to take time. Feinberg
denied telling Ventanilha that employees without legal
papers could not vote. As was the case with Fernandez,
I credit the denial over the alleged conversation as relat-
ed by Ventanilha. My crediting of the denial by Fein-
berg is based on the demeanor of the witnesses and on
the totality of the evidence presented. Although Fein-
berg allegedly told Ventanilha he could not vote without
"delivery papers" (presumably legal working papers), the
record was not developed with respect to whether Ven-
tanilha had such papers or the significance of such
papers. It does not make much objective sense for Fein-
berg to have threatened or misled Ventanilha into believ-
ing he could not vote because of a lack of certain papers
and then attempt to convince him that the Union was
not good because of his father's experience and that the
Company's health benefits were better than those he
would have with the Union.
Ventanilha was one of the most junior drivers in the
Company and assigned to the Newark Airport. He made
trips to the other airports, LaGuardia and Kennedy, oc-
casionally. On the unspecified date when the involved
conversation allegedly took place, for an unstated reason,
Ventanilha testified that he stopped by the office and
was immediately engaged in the alleged private conver-
sation with Feinberg. I find the alleged conversation as
related by Ventanilha to be unlikely and, in my opinion,
unbelievable.
In all, with respect to both the alleged conversations
between Ventanilha, Fernandez, and Feinberg, I credit
the denials made by Feinberg and Fernandez and dis-
credit the allegations of Ventanilha in regard to both
conversations, who, in my opinion, is a disgruntled em-
ployee and had been lawfully laid off
D. Allegations of Coercion by Feinberg Against
Employee Mario Salazar
As noted in the remand order, employee Mario Sala-
zar testified that on the day before the election, Feinberg
advised him that it would be better if he did not come in
the next day, which was his day off. Feinberg, on the
other hand, testified that Salazar asked him if he had to
come in on his day off to vote, and Feinberg told him he
could do what he wanted.
Feinberg's description of this conversation was as fol-
lows:
It was, I guess, about 6 or 7 o'clock that evening.
Mario Salazar came in and said, "tomorrow is my
day off, do I have to come in to vote if I don't
want too?"
Feinberg testified that he responded, "It's your day off,
do what you want."
Salazar, on the other hand, described the conversation
in this fashion:
Yeah, he told me, "you off tomorrow?" I said, "Yes
I'm off tomorrow." "So you don't need to come,
that's better. You don't have to appear if you don't
come."
I credit Feinberg's version of the conversation. Based
on my observation of the witnesses, I cannot find that
Feinberg would have approached Salazar on the day
before the election, inquire whether the next day was his
day off, and then encourage him not to come and vote in
the election. Feinberg's explanation of the conversation is
far more logical and appears to me to be the truth. I find
that Feinberg's version of the conversation does not con-
stitute a violation of the Act nor objectionable conduct
effecting the outcome of the election.
II. SUPPLEMENTAL CONCLUDING FINDINGS
In response to the Board's direction, I have made the
required credibility determinations. As I have credited
either the denial that an alleged violative conversation
took place, or I have determined that the credited con-
versation did not violate the Act, I find that no violation
of the Act has occurred as alleged in the involved por-
tions of the consolidated complaint and recommend that
these portions of the complaint be dismissed.1
I If no exceptions are filed as provided by Sec. 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.