Classic Coach

National Labor Relations Board - Board Decisions

Nov 22, 1995

319 N.L.R.B. 701 (N.L.R.B. 1995)

701
319 NLRB No. 96
CLASSIC COACH
*We correct an inadvertent error resulting in the repetition of pars.
11 and 12 in sec. II,C of the judge’s decision.
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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.
We also find without merit the Respondent’s allegations of bias
on the part of the judge. On our full consideration of the record, we
find no evidence that the judge prejudged the case, made prejudicial
rulings, or demonstrated bias in his credibility resolutions, analysis,
or discussion of the evidence.
In affirming the judge’s finding that Daniel Mullen was ineligible
to vote, we find it unnecessary to pass on the question whether he
is a supervisor. Thus, it is unnecessary to pass on the issue whether
the van and limousine drivers with whom he interacts are independ-
ent contractors or statutory employees. Rather, we find that Mullen’s
interests are aligned with those of management and that he does not
share a community of interest with unit employees.
Schoolman Transportation System, Inc. d/b/a Clas-
sic Coach and Local 804, International Broth-
erhood of Teamsters, AFL–CIO. Cases 29–CA–
17074, 29–CA–17183, 29–CA–17256, and 29–
RC–8087
November 22, 1995
DECISION, ORDER, AND DIRECTION
BY MEMBERS BROWNING, COHEN, AND
TRUESDALE
On May 15, 1995, Administrative Law Judge Robert
T. Snyder issued the attached decision. The Respond-
ent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision* and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Schoolman Transportation
System, Inc., d/b/a Classic Coach, Bohemia, New
York, its officers, agents, successors, and assigns, shall
take the action set forth in the Order.
IT IS FURTHER ORDERED that Case 29–RC–8087 is
severed from Cases 29–CA–17074, 29–CA–17183, and
29–CA–17256; that the challenge to the ballot of Dan-
iel Mullen is sustained and the challenge to the ballot
of Robert Molaro is overruled; and that Case 29–RC–
8087 is remanded to the Regional Director for Region
4.
DIRECTION
IT IS DIRECTED that the ballot of Robert Molaro be
opened and counted by the Regional Director in ac-
cordance with the Board’s Rules and Regulations; that
he prepare and serve on the parties a revised tally of
ballots; that if the revised tally shows a majority of
votes for the Union, he issue the appropriate certifi-
cation of representative; and that if the revised tally
does not so show, Petitioner’s Objections 2, 4, and 6
shall be sustained and the Regional Director shall set
aside the results of the election held February 9 and
11, 1993, and shall direct a new election.
James P. Kearns, Esq., for the General Counsel.
Martin Gringer, Esq. (Franklin & Gringer, P.C.), for the Re-
spondent and Employer.
Gary Gordon, Esq. and Richard Brook, Esq. (Cohen, Weiss
& Simon), for the Charging Party and Petitioner.
DECISION
STATEMENT OF THE CASE
ROBERT T. SNYDER, Administrative Law Judge. These are
consolidated cases heard in Brooklyn, New York, on Feb-
ruary 14 through 17, and March 17 and 18, 1994. The record
closed on April 6, 1994, after the Charging Union withdrew
a challenge to the ballot of an alleged supervisor, Jose
Rodriguez, and his ballot was opened and counted.
Cases 29–CA–17074, 29–CA–17183, and 29–CA–17256
involve charges by Local 804, International Brotherhood of
Teamsters (Local 804 or the Union), against Schoolman
Transportation Systems, Inc., d/b/a Classic Coach (Respond-
ent, Classic, or Classic Coach), alleging various acts of inter-
ference, restraint, and coercion of employees exercising
rights guaranteed in Section 7 of the Act, including threats
to close operations, that a strike would be inevitable if the
employees selected the Union as their bargaining representa-
tive, warnings to cease protected concerted activities, interro-
gations of their union activities, creating the impression that
their union activities were being kept under surveillance, and
offering benefits as an inducement to vote against union rep-
resentation. These cases also allege the discriminatory reduc-
tion in seniority of employee Anthony Iuzzolino, as well as
his discharge, and a series of written warnings and the dis-
charge of employee Robert Molaro in violation of the Act.
The consolidated complaint in these cases issued on May 28,
1993. In its answer, the Respondent denied the conclusionary
allegations of the consolidated complaint.
Case 29–RC–8087 arises out of a representation election
conducted by Region 29 of the Board on February 9 and 11,
1993, upon a petition filed by Local 804 on December 21,
1992, in a unit of all full-time and regular part-time bus driv-
ers, mechanics, dispatchers, and assistant dispatchers em-
ployed by Respondent. Local 804 received 19 votes, 17 votes
were cast against Petitioner, and there were 4 challenged bal-
lots, sufficient in number to effect the results of the election.
Petitioner filed timely objections to conduct affecting the re-
sults of the election.
In a Report on Objections and Challenges, Order Consoli-
dating Cases and Notice of Hearing which issued June 10,
702 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Counsel for General Counsel’s letter dated April 7, 1994, distrib-
uted via telecopier to me and counsel advising of these events and
my letter to the parties dated April 6, 1994, closing the record, are
received in evidence as the administrative law judge’s Exhs. 1 and
2, respectively.
2 Prepetition conduct may not itself form the basis for setting aside
the election, The Ideal Electric & Mfg. Co., 134 NLRB 1275 (1961)
even though it may lend meaning and dimension to related
postpetition conduct. See Dresser Industries, 231 NLRB 591 (1977).
1993, the Acting Regional Director for Region 29 sustained
three objections which track certain of the 8(a)(1) allegations
in the consolidated complaint which were alleged to have
taken place during the critical period between the filing of
the petition and the date of the election, and ordered a con-
solidated hearing with the consolidated complaint on these
objections as well as the challenges to the ballots cast by the
alleged discriminatorily discharged employee Robert Molaro
and alleged Supervisors Jose Rodriguez and Daniel Mullen.
At the close of hearing, the Union withdrew its challenge
to the ballot cast by Jose Rodriguez, and after receiving a
waiver from him, the Region opened his ballot and disclosed
it had been cast against petitioner.1 The revised tally of bal-
lots thus shows a vote count of 19 to 18 in favor of the
Union, with the two remaining challenged ballots being de-
terminative. They shall be resolved in this Decision along
with all other issues.
On the entire record, including my observation of the de-
meanor of the witnesses and after careful consideration of the
posttrial briefs filed by each of the parties, I make the fol-
lowing
FINDINGS AND CONCLUSIONS
I. JURISDICTION AND LABOR RELATIONS STATUS
Respondent, a New York corporation, with its principal of-
fice and place of business located at 1600 Locust Avenue,
in the Village of Bohemia, County of Suffolk, City and State
of New York (theBohemia facility), has at all times material
been engaged in the operation of a charter bus service. An-
nually, Respondent, in the course and conduct of its business
operations, derives gross revenues in excess of $500,000, and
purchases and receives at its Bohemia facility, products,
goods, and materials valued in excess of $50,000 from other
enterprises located within the State of New York, each of
which other enterprises purchase and receive the said prod-
ucts, goods and materials directly from points outside the
State of New York. Respondent admits, and I find, that it is
an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act. The Respondent admits,
and I also find, that Local 804 is a labor organization within
the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES, OBJECTIONS
AND CHALLENGES
A. The Various Incidents of Alleged Threats,
Inevitability of Strikes, Warnings, Interrogations,
Promises of Benefits and Creation of the Impression
of Surveillance
These incidents may be appropriately separated into two
categories; (1) conduct which preceded the filing of the peti-
tion;2 and (2) conduct engaged in during the critical period
alleged by Local 804 in its charges and the election objec-
tions referred for hearing.
1. Prepetition conduct
As earlier noted, the petition in 29–RC–8087 was filed on
December 21, 1992.
As early as May 1992, a group of coach drivers met at
the house of then driver, later Operations Manager James
Kent, to discuss cutbacks in pay and benefits and the possi-
bility of seeking union representation. Following this meet-
ing, driver Jose Ramos, the most senior driver as well as the
senior informal grievance representative at the time for driv-
ers on personnel problems which arose with management,
contacted Local 282 of the Teamsters. Although Ramos testi-
fied that a meeting was held with a representative of Local
282, Perry Baron, and a small group of drivers shortly after
the meeting at Kent’s house, it appears that this meeting was
actually held early in August 1992.
As explained by driver Anthony Iuzzolino, after Ramos
had made the initial call to Local 282, he followed up with
subsequent conversations with Representative Baron and ulti-
mately arranged a meeting that was held with her at the
Local 282 office in Lake Success, Queens, New York, at-
tended by himself, Ramos, and two other drivers, Sharif and
Campbell. Authorization cards were distributed and signed
by each of the four drivers. Immediately afterward, Iuzzolino
started discussing the Union with just about every driver at
various locations, including the yard at the Bohemia facility,
jobsites like Atlantic City, New Jersey, while sitting in buses
and eating lunch. He passed out union literature to employ-
ees and explained the Union’s organizing procedure.
Ramos, as senior employee representative, along with Tom
Tinsley, another driver and junior employee representative,
arranged a meeting with Frank LoDestro, Respondent’s sen-
ior vice president, to discuss certain cuts in benefits and sal-
ary which had recently been imposed. The meeting was held
in LoDestro’s office sometime in August. During it,
LoDestro remarked, according to Ramos, that the two of
them were involved with unionizing the drivers. Neither of
the employees responded and the subject was not pursued.
Then, at the end of August, another meeting was held at-
tended by Ramos, as employee representative, Iuozzolino,
LoDestro, and Jeff Goldwasser, Respondent’s General Man-
ager. Operations Manager Jim Kent came in later but only
for a brief period. The subject of the meeting was Respond-
ent’s intention to remove Iuzzolino as a full-time coach driv-
er because of his alleged failure to be available for work on
a 5-day-a-week basis. As related by Iuozzolino, after discuss-
ing his own scheduling problem, the participants went on to
discuss the problems which the drivers had expressed con-
cern about, including work schedules, job assignments, times
on jobs, and salary on specific jobs. At one point, LoDestro
commented that ‘‘Everything seems to be a one-way street
with you guys, you know, the company has bent over back-
wards for you. The company did what it can for you, and
now you want to go union.’’ LoDestro now said that as far
as he was concerned there would never be a union. ‘‘I’ll do
whatever I can to stop it.’’
Then LoDestro grew very irritated, enraged and excited.
He banged the table. When he did so, the cigarette he had
in his mouth went flying. LoDestro picked it up and almost
put it in his mouth backwards. He repeated that as far as he
703CLASSIC COACH
3 As will be described in greater detail, infra, Respondent operates
a van operation providing door-to-door service to the airports as well
as a limousine service for airport transport and private hire with a
separate group of drivers, as well as the bus division whose employ-
ees are involved in this consolidated proceeding.
was concerned they, the drivers, would never have a union
in there. He then went on to say, ‘‘Go ahead, bring the union
in, because if I can’t stop it with people I know, Bill [refer-
ring to William Schoolman, Respondent’s president and
owner] and I have already discussed doing away with the bus
division, we won’t have any more buses. We’ll only have a
van operation,3 and then all you guys will be out of a job,
you’ll all be in the street.’’
Ramos, who also testified about this meeting for General
Counsel, basically corroborated Iuzzolino’s testimony about
LoDestro’s threatening remarks, even to the extent of recall-
ing the incident when LoDestro’s banging of the table with
his fist caused his cigarette to jump out of his mouth and re-
sulted in his reinserting it in reverse. LoDestro stated there
wouldn’t be a union in that place, not as long as he could
help it, and if he couldn’t squash it, he had friends that could
and he had discussed it with Schoolman and that he would
shut down the coach division if he could squash the union
and ‘‘you, the employees,’’ would be out the door.
During his testimony during the presentation of Respond-
ent’s defense, LoDestro admitted telling Ramos and Tinsley
during a second meeting on August 31 which excluded
Iuzzolino, that as long as he was in this company, ‘‘there
would never be a union here.’’ I found LoDestro to be eva-
sive, and inconsistent in his testimony, particularly as to
when he first learned about the Local 804 organizing drive.
In his pretrial affidavit, LoDestro denied he was aware of
any employee interest in unionization until Respondent re-
ceived the representation petition from Local 804 in late De-
cember 1992; denied speaking to employees about the union
prior to receiving the petition; and denied ever telling em-
ployees that there would never be a union at Classic Coach
or Respondent would close the bus division if a union got
in. In admitting his adamant antiunion statement on August
31, LoDestro impeached himself on an issue central to the
proceeding. Counsel’s attempt to rehabilitate him on redirect
examination failed when LoDestro attempted unsuccessfully
to explain that he believed the questions about his union
knowledge and statements for purposes of the affidavit relat-
ed to the time frame after the filing of the petition, even
though his responses in the affidavit were specifically related
to the period prior to receiving the petition. I fully credit
Iuzzolino and Ramos regarding LoDestro’s conduct on Au-
gust 31, and Iuzzolino’s attendance and defense of the Union
on that occasion.
According to driver Robert Molaro, after returning to Re-
spondent’s employ on October 9, 1992 as a coach operator,
for the fourth time, he became active in the union campaign,
which until November 17, involved Local 282. At a meeting
he and Ramos attended with Local 282 organizer Baron on
October 23, 1992 at the Union’s office in Lake Success, the
employees discussed the problems they were having and
were given literature and authorization cards to distribute.
Starting the next day, Molaro discussed the Union with other
drivers before work, in Atlantic City, and after work. He
handed out union literature to 10 or 11 drivers and talked in
all to 10 to 15 employees. He distributed and got employee
signatures on 10 or 11 cards.
On November 2, when he came in to the facility, Jim Kent
told him that LoDestro wanted to see him. Molaro went into
his office, sat down and asked LoDestro what was wrong or
what he wanted. LoDestro said ‘‘I see you have been stirring
up trouble talking to the guys out in the yard.’’ Molaro asked
what he meant, LoDestro responded, ‘‘I hope you are not
doing the wrong thing.’’ Molaro said he wasn’t doing any-
thing wrong. LoDestro told Molaro to go back to work and
that he didn’t want to hear it again. During this exchange
LoDestro appeared angry.
About 8 days later, Molaro was in the front of the shop
talking to the mechanic about the bus and the mechanic hap-
pened to mention to him that LoDestro was really angry at
him about union activity. With this state of mind, Molaro
saw LoDestro approaching where he was standing. The me-
chanic left. Molaro took the occasion to say, ‘‘I thought we
straightened this out last week.’’ LoDestro responded, ‘‘You
are still fucking lying to me.’’ Molaro replied, ‘‘No, I’m
not,’’ and LoDestro walked away.
When LoDestro was asked on his direct examination about
Molaro’s attributing to him the comment about accusing
Molaro of stirring up trouble talking to guys in the yard, he
responded ‘‘I believe that was the original discussion that we
had in my office and at the, in the garage.’’ (Tr. 843.)
LoDestro went on to explain that discussion as a reprimand
of Molaro for disrupting the mechanics from doing their
work, and disrupting the girls from doing their work, and
spreading a rumor to Kent about taking over his job and that
he, LoDestro approved it. But none of those conversations
were claimed by LoDestro to have taken place in the yard.
Conversations with the mechanics would have been in the
garage, and conversations with the girls, reservationists, or
Kent would have taken place in the office. Thus, LoDestro’s
explanation does not accord with his own claim that Molaro
was interfering with other employees and is not believable
and is evasive in avoiding a direct answer. LoDestro later
agreed that the ‘‘yard’’ refers to the employee parking area
outside the building where Molaro was engaged, from time
to time, in soliciting employees for the Union before and
after work. It was only significantly later, during his redirect
examination that LoDestro now changed his response to the
initial question and for the first time denied directly telling
Molaro not to talk to coach drivers in the yard. (Tr. 953.)
Molaro is fully credited in his attributing the warning about
stirring up trouble in the yard to LoDestro and LoDestro’s
later angry accusation that Molaro had not heeded his warn-
ing. It is evident that LoDestro’s remarks related to his
knowledge of Molaro’s union solicitations and desire to
make Molaro aware of this knowledge, to interrogate him re-
garding this activity and to implicitly warn him to cease such
activity.
LoDestro’s August 31 statements to Ramos and Tinsley
constitute threats to close the bus operation and to oppose
union organization at all cost in violation of Section 8(a)(1)
of the Act. Athens Disposal Co., 315 NLRB 87 (1994).
LoDestro’s later November 2 and 10 interrogations of
Molaro and veiled warnings to cease his union activity are
also violative of Section 8(a)(1). Foamex, 315 NLRB 858
(1994).
704 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2. Conduct during the critical period
Coach Driver Edward LaPetina testified that on the morn-
ing of January 2 or 3, 1993, he was on the steps of his as-
signed coach cleaning it, while on standby waiting for a pos-
sible assignment. LoDestro approached him and asked, ‘‘Ed,
what do you think about what is going on.’’ LaPetina asked
what he meant by that. LoDestro replied, ‘‘Well, about this
union business.’’ LaPetina said he thought it was a good
thing happening which would ‘‘give us like some kind of
stability as far as pay cuts and firings go and stuff like that.’’
LoDestro responded, ‘‘Well, what is to stop me from firing
guys now and just hiring 12 guys.’’ LaPetina told him, ‘‘At
least 95 pecent of the drivers give you their all. You hire 12
guys now all you are going to be is abstracts, and that’s all,
I am going to show you how they drive.’’ LaPetina’s ref-
erence to abstracts was to the driving record, including viola-
tions which Classic Coach obtains from the State Motor Ve-
hicle Bureau on new applicants for employment. LaPetina
went on, ‘‘that [abstracts] is all you would have, because
right now you know the drivers you have, you know the cus-
tomers want them back, they are good drivers.’’
After LaPetina denied, under further questioning, that the
union organizing was motivated by a desire for additional
money, LoDestro started cursing, referring to ‘‘you fucking
guys, what do you think the union is going to do for you,
they are not going to do a fucking thing for you. I give you
whatever you want, I give you, you know.’’ At some point
as the conversation continued, LaPetina was called away to
handle an overload and went to work.
LaPetina’s testimony was direct and straightforward and is
credited. LoDestro admitted a conversation of short duration
with LaPetina at his bus about what the Company has given
as opposed to what the Union would provide, but could not
recall if he said anything about the Company firing and re-
placing drivers, but really didn’t think he had. LoDestro, pre-
viously discredited, is not credited here as well.
About 2 weeks before the election, William Schoolman,
Respondent’s president and sole owner, took LaPetina into
Jeff Goldwasser’s office, closed the door, and accused him
of trying to steal his money. When LaPetina replied ‘‘I don’t
steal anybody’s money,’’ Schoolman told him to ‘‘lower
your voice or I will slap you’’ and repeated this when
LaPetina expressed incredulity. The accusation had to do
with a claim LaPetina had made for overtime on an over-
night trip to Niagara Falls when he had to stay out until 3:30
a.m. after the customer explained he had Classic Coach’s ap-
proval for the extra time. As LaPetina explained to
Schoolman, this matter had been discussed previously with
LoDestro and Goldwasser who had denied guaranteeing the
time to the customer but who had absolved LaPetina of
wrongdoing. In referring to LoDestro, LaPetina used the ex-
pression ‘‘Mr. Frank.’’ Schoolman asked if LaPetina was
‘‘trying to make a fucking joke out of this.’’ LaPetina didn’t
know what he meant. Schoolman said ‘‘by calling us Mr.
Frank and Mr. Bill.’’ Schoolman next said he had heard
LaPetina had told LoDestro that the Company wouldn’t last
2 weeks without the drivers. In all likelihood this is a ref-
erence to the earlier conversation at which LoDestro had
threatened and interrogated LaPetina. LaPetina denied he
ever said that. Schoolman added that a driver had come in
and told them that he, LaPetina, could withstand a strike be-
cause his ‘‘wife works.’’ When LaPetina asked who said
that, Schoolman did not reply.
Schoolman then went on to ask LaPetina to tell him what
really was the gripe of the men. Before LaPetina could reply,
Schoolman said ‘‘Let’s go into my office.’’ Once there,
Schoolman said ‘‘Let’s not speak here,’’ and took LaPetina
to a room in the garage, but then left saying he needed pen
and paper and returned shortly with them. They both sat a
table. Schoolman asked, ‘‘Why are the guys doing this, and
added, I heard that you were getting the guys to do this.’’
LaPetina said, ‘‘They are all grown men, they got minds of
their own. I can’t make them do anything they don’t want
to do.’’ Schoolman now said, ‘‘Well tell me what the prob-
lems are.’’ LaPetina replied, ‘‘It had to do with vacation, it
had to do with us paying money in Atlantic City for parking,
us paying a percentage of the tolls, losing money going past
exit 68, Airport, transfers or shuttles.’’ As LaPetina described
the problems, Schoolman was writing them down.
Schoolman said, ‘‘Well, I can’t give you anything, because
it is illegal for me to give you anything to vote no, but if
you can read between the lines, I don’t want to lose you as
a driver, maybe we can do this amongst ourselves.’’ LaPetina
said, ‘‘Why don’t you just call a meeting, tell the guys what
you are telling me.’’ Schoolman said, ‘‘We can do that.’’
LaPetina asked, ‘‘Who would you like at the meeting, Joe
Ramos or Tom Tinsley.’’ Schoolman said ‘‘anybody but
Tony Iuzzolino, because Tony is a hot head and all he does
is yell and scream.’’
On another occasion, in early February, a few days before
the election, LaPetina had returned to the facility early from
a merge with another driver and after seeking, unsuccess-
fully, to get petty cash, he got in his car to drive home. As
he started up his car, Schoolman came out into the yard,
knocked on the window, and after preliminary salutations
and greetings were exchanged, Schoolman said, ‘‘You can
put a stop to this now.’’ LaPetina replied, ‘‘I don’t under-
stand what you are telling me. Schoolman said Ed, it is get-
ting out of hand, and you can put a stop to it now.’’ And
then he left and went to the other employee’s car and
LaPetina went home. LaPetina related this entreaty to
Schoolman’s earlier conversation with him when Schoolman
blamed him for making the other employees become in-
volved with the Union.
Jose Ramos testified that one evening, approximately 4
weeks before the election, while he was fueling up his bus,
Schoolman came into the bus, sat down and started asking
questions, and after Ramos finished fueling and parked,
Schoolman remained and they continued to talk with
Schoolman asking questions regarding what was going on
with the Union. Schoolman asked why he got into this situa-
tion, meaning the organizing campaign and representation
election. Ramos said it all started ‘‘when you had Mr.
Weintraub come in here and pollute your mind with all these
things about saying drivers are a dime a dozen. That’s when
everybody tried to unionize because after Weintraub was
there all the cuts began. That’s when it all began going down
hill. The Company used to be decent with us.’’ (Weintraub
was an efficiency expert who was hired by Classic Coach as
a consultant.)
According to Ramos, after being refreshed from a review
of his pretrial affidavit, he recalled that Schoolman had men-
tioned during this conversation that he had had some prior
705CLASSIC COACH
experience with unions with limousines. Ramos was firm that
it was Schoolman who had first raised the subject of union-
ization.
Tony Iuzzolino testified that on a Saturday, February 6,
1993, a few days before the election was held, he was in the
lobby of the facility making his picks of assignments for the
following week, when Schoolman walked in. After exchang-
ing pleasantries, Schoolman asked if Tony had gotten the let-
ter that was sent out. This was a reference to a piece of com-
pany antiunion literature dated February 5, addressed to its
employees, consisting of three pages and containing a full-
sized cartoon of a figure representing an out-of-work hobo
or bum standing in front of a small cooking fire and railroad
tracks with the inscription ‘‘But Local 804 Got in and Did
to Classic Coach What They Did to U.P.S. VOTE NO. Vote
for Classic Coach on February 9th or on February 11th !!’’
On the third page of the letter, Schoolman described Team-
sters Local 804 as being a strike happy, violent group and
notes:
Remember what Local 804 did to UPS. Their 20 year
span of constant strikes at every contract renewal plus
their wildcat strikes made UPS noncompetitive and al-
lowed Federal Express to take over. Is this what we
want for Classic Coach? In this highly competitive po-
sition would mean less work, less money and possible
layoffs for you!
Iuzzolino replied that he hadn’t received it. Schoolman said,
‘‘It’s very informative. You should read it.’’ He said ‘‘Let
me make you a copy.’’ Tony said ‘‘fine,’’ Schoolman then
said ‘‘I’d like to sit down and have a man-to-man talk with
you, if you don’t mind’’ and asked if he had the time. Tony
said ‘‘yes.’’ After Schoolman dictated a letter in his office
and provided a copy of the Company’s February 5 letter for
Tony to read, they held a conversation standing just outside
Schoolman’s office.
As related by Iuzzolino, they talked about the Union and
the employees deciding to go with the Union. Schoolman
said, ‘‘You know, you’re a smart guy. You’ve been in busi-
ness. You understand the problems that a business man has
today. We have a tremendous amount of problems in the
coach business. There’s a lot of competition on Long Island
and we’ve done the things we have for various reasons. We
had to cut back, we had to do this.’’ Iuzzolino expressed crit-
icism that the way the cutbacks were implemented they cre-
ated a lot of ill feelings. A lot of it could have been avoided.
They then talked about communication problems between the
drivers and the Company and Schoolman’s desire to rectify
the problems.
Schoolman then spoke about the Union. He said, ‘‘You
know, Tony, if you vote in a union here, if you vote in Local
804 there’s going to be a strike.’’ Iuzzolino replied, ‘‘Why
do you say that, nobody wants a strike, neither the Company
nor the Union.’’ Schoolman said he was very familiar with
804 from when he was with UPS. ‘‘That’s a very violent
union. They have a long history of strikes and violence, and
there will be a strike.’’ Tony disagreed, saying nobody is
going to benefit from a strike.
Schoolman then said, ‘‘Tony, what can I say to you to get
you to vote no.’’ Iuzzolino looked at him, smiled and
shrugged his shoulders. Schoolman repeated his question and
Iuzzolino repeated his unspoken reaction. Schoolman then
waved his hands at Tony and with a smile on his face said
‘‘your a yes vote. I have that feeling.’’ Iuzzolino now said
‘‘Really, well, you never know.’’
Schoolman also asked Iuzzolino if he was on the organiz-
ing committee. Tony said no. He also asked Iuzzolino about
a prounion letter sent out on the campaign describing what
the Union could do for the men and what the Company
would try to do. Iuzzolino denied that he was responsible
and didn’t know who was.
At this point a driver, Andy Cilla, walked in and
Schoolman looked at him and said, ‘‘Andy, the only guy
who I know is going to vote no,’’ to which Andy responded,
‘‘yes,’’ he would vote no. Andy went on to describe why he
felt a union couldn’t help the employees. Schoolman asked
Iuzzolino if he intended to attend the meeting the next day
at Classic. Tony asked ‘‘Would it benefit us, financially, as
drivers?’’ and Schoolman said yes. The discussion ended
with Schoolman again asking Tony to attend and to read the
letter. Iuzzolino had another commitment and did not attend
the meeting.
Schoolman agreed he took LaPetina into Jeff Goldwasser’s
office, objected to LaPetina’s calling him and the managers
Mr. Bill, Mr. Frank, and Mr. Jeff and said, ‘‘One of these
days someone is going to slap you when you when you talk
so disrespectfully,’’ but denied he threatened to slap
LaPetina. Schoolman also denied he got a pad to write down
grievances but admitted he grabbed a yellow pad and pencil.
He also denied he asked what the grievances were, ever re-
ferred to Iuzzolino disparagingly, or that he made a veiled
promise of benefits because that was not the way he spoke,
he was very blunt. As to the statement at LaPetina’s car,
Schoolman believed he thought he asked if LaPetina had any
questions because he was following the same format in
speaking to employees and following an outline he had pre-
pared. He had the impression that LaPetina favored the
Union, having told Schoolman the issue had nothing to do
with money, but everything to do with representation.
I am convinced that Schoolman made the statements at-
tributed to him by LaPetina, and that because of the strength
of his antiunion sentiments and convictions, he made an ef-
fort with a number of employees, including LaPetina, to
bring out their deepest feeling about the union campaign,
using whatever information he had about them, such as the
stories Schoolman had obtained about LaPetina’s alleged in-
volvement in solicitations and his willingness to withstand a
strike, to press them about their union sentiments. In the
course of doing so, Schoolman unlawfully interrogated
LaPetina, unlawfully created the impression his union activi-
ties were being kept under surveillance, and unlawfully di-
rected LaPetina to have other employees cease their prounion
conduct and activity.
Schoolman denied that he asked Ramos ‘‘what do you
guys want or what are your grievances.’’ Yet, Schoolman ad-
mitted confronting Ramos in his bus late in the evening with
the comment, inter alia, that ‘‘it was my understanding that
you found those arrangements [when Frank LoDestro met
with Ramos and Tinsley last August] and those give backs
by Frank acceptable and now we’ve been served with a peti-
tion.’’ (Tr. 1193.) In essence, Schoolman was indeed press-
ing Ramos to explain or account for the current organizing
campaign. It is also significant to note that while Schoolman
706 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
claimed he tried to stay close to his outline prepared for his
union-related discussions with employees, he also noted that
some people could get hot when discussing such matters and
anybody could say the wrong thing. Such interrogation ex-
ceeds permissible bounds and violates the Act. Foamex, cited
supra. Ramos is credited on his version of the interchange
and conversation that evening.
Schoolman acknowledged buttonholing Iuzzolino on Satur-
day morning, February 6 at the facility and getting the em-
ployee to agree to talk about the issues in the campaign, but
denied stating there would be a strike if Local 804 got in,
asking what he could say to get Tony to vote no, asking if
the employee was on the union organizing committee or re-
sponsible for issuing a particular union letter, or calling him
a ‘‘yes’’ vote and Cilla a ‘‘no’’ vote. Indeed, Schoolman de-
nied having any knowledge of Iuzzolino’s union sentiments
on February 6, yet Respondent was aware since at least the
end of August when he defended unions and expressed the
employees’ need for union representation to Vice President
LoDestro, that Iuzzolino was an outspoken union advocate.
It would have been logical for such a strong defender of the
status quo as Schoolman to seek to convert Iuzzolino in the
strongest terms possible, including embellishing on the lan-
guage in his February 5th letter to employees by guarantee-
ing a strike if Local 804 became the drivers’ representative,
to feel him out on what would get him to change his mind,
and to confront Iuzzolino with rumors as to his union partici-
pation. Iuzzolino’s more comprehensive, straightforward, and
detailed narrative of the conversation that morning is cred-
ited. The conduct in which Schoolman engaged that morning
constitutes a series of violations of Section 8(a)(1) of the
Act, including unlawful interrogation, unlawfully threatening
that a strike would be inevitable if the employees selected
the Union as their collective-bargaining representative, offer-
ing unspecified benefits as an inducement to vote against
representation by the Union as the upcoming election to be
conducted by the Board, and creating the impression among
employees that their Union activities were being kept under
surveillance. Foamex, supra; Gem Urethane Corp., 284
NLRB 1349 (1987); Metropolitan Life Insurance Co., 256
NLRB 626, 633 (1981). These numerous incidents of unlaw-
ful restraint and coercion of employee rights under Section
7 of the Act constitute as well valid objections to conduct
affecting the results of the election, which, if my determina-
tion of the challenges show the Union did not achieve a ma-
jority of valid ballots cast in the election, should result in my
recommending that the election be set aside and a rerun elec-
tion be ordered to be held. Dal-Tex Optical Co., 137 NLRB
1782, 1786 (1962). LoDestro and Schoolman were the top
executives and the owner of the Company and their coercive
questioning, threats, and statements designed to unlawfully
undermine employee support for Local 804 carried the
weight of authority of their managerial positions. Their coer-
cive activity directed to a senior employee and representa-
tive, Ramos, and to two other known union activists,
LaPetina and Iuzzolino, could be expected to be disseminated
widely among unit employees. The extremely intimidating
nature of their remarks, following and related to LoDestro’s
threat to close the coach operation made outside the critical
period, satisfy the legal standard for establishing their sub-
stantial interference with the laboratory conditions which the
Board has established to govern the electoral process.
B. The Discharge of Employee Robert Molaro and His
Challenged Ballot
Robert Molaro first worked for Classic Coach as a coach
operator in 1985. Thereafter he worked off and on until Oc-
tober 9, 1992, when he returned to Respondent’s employ for
the fourth and last time. In the Spring of 1992 when Molaro
was living in Florida, Respondent supplied him with a posi-
tive reference. By letter dated April 23, 1992 on Classic
Coach letterhead, addressed ‘‘To Whom It May Concern,’’
General Manager Goldwasser wrote that ‘‘Robert Molaro has
been employed as a motorcoach driver at Classic Coach for
a period of six years. I find Robert to be a trustworthy and
reliable individual, Classic Coach often received requests
from customers for Robert to drive on special charter jobs.
I would recommend him for any position, either driving or
in a supervisory capacity. We would welcome his return at
any time.’’
Molaro’s union activities on his return have been pre-
viously briefly summarized, as well as LoDestro’s pointed
accusations to Molaro’s stirring up trouble and his later foul
mouthed censure of Molaro for lying that he had ceased stir-
ring up trouble, i.e. his organizing activities.
At a union meeting held on November 17, called by Baron
of Local 282, and attended by representatives of Local 804,
as well as Baron, Ramos, Iuzzolino, Molaro, and another em-
ployee, it was disclosed that because of too many commit-
ments or contracts expiring, Local 804 would take over the
Classic Coach organizing effort. Molaro, Ramos, and
Iuzzolino signed Local 804 combination membership and au-
thorization cards at this meeting. By letter dated December
2, 1992, Tony Magrene, Local 804 trustee/business Agent,
forwarded Local 804 signup cards to Molaro to distribute to
other employees. Over the week-and-a-half following his re-
ceipt of these cards on December 3, Molaro, along with
Ramos and Iuzzolino, distributed the cards and solicited sig-
natures. Molaro signed up one employee in the lobby of the
facility, three in the yard, and others while they were in At-
lantic City. He also distributed union literature to at least a
dozen employees during this period of time. Between No-
vember 17 and December 3, Molaro named 10 separate em-
ployees whom he solicited for the Union. One of them,
Dwayne Johnson, later refused to sign an 804 authorization
card when Molaro started distributing them on and after De-
cember 3 to most of these same employees. To some who
asked, he explained the reason that 804 was now succeeding
282 in the organizing drive.
On December 16, 1992, Molaro received a message from
Kent to call the office, that Frank and Jeff wanted to see
him. He arrived back at the facility at 1 p.m. He went to Jeff
Goldwasser’s office and asked him what was up, and
Goldwasser told him as of today, this date, you are termi-
nated. Molaro asked what for, and Goldwasser said ‘‘It’s not
working out between you and Classic Coach.’’ Molaro
asked, ‘‘What did I do wrong.’’ Goldwasser said he didn’t
‘‘want to discuss it, it’s not working out.’’ Goldwasser did
produce a rule book and pointed to an involuntary termi-
nation clause or something and said ‘‘this is what your get-
ting discharged under.’’ Molaro looked at it and said ‘‘it’s
a poor reason to discharge somebody’’ and walked out. He
then walked into Frank LoDestro’s office and asked Frank
what was up and he said, ‘‘Your terminated.’’ Molaro said
‘‘what for’’ and he said ‘‘it’s not working out.’’ Molaro
707CLASSIC COACH
pressed him as to what he did wrong and LoDestro said ‘‘we
don’t care to discuss it,’’ and Molaro left the office.
Molaro was later asked to turn in his petty cash. On the
next day, Thursday, December 17, 1992, payday, Molaro re-
turned to the facility, to pick up his paycheck from the pre-
vious week and to turn in his recap sheet showing assign-
ments and travel the last week. He also turned in his petty
cash at that time. Jim Kent asked him, do you want your
money now, is it a large check you are getting now. Molaro
said no, it was only a merge and a standby and then Atlantic
City. He said he could wait until next week.
Molaro explained that the recap sheet is a report that the
driver fills out of what work he did in a particular week. On
it the driver records what jobs he did, what buses he used,
where he went, the time he went, and the time he returned
from a trip and the amount of payment due for the trip.
Molaro filled in the information at the beginning of the week
when he received his assignments, and then recorded any
changes in assignments that occurred during the week. He
then handed the sheet in after the payroll week ended on a
Thursday. Supervisor Jim Kent corroborated that the drivers
usually turn in these sheets at the end of the week, and had
until Monday to do so. Since he had no assignments that
Thursday, having been fired the day before, he handed it in
on Thursday, December 17.
The following week, on Christmas Eve, December 24,
Molaro returned to the facility to receive his last week’s pay-
check. Kent came out into the lobby with his check. Molaro
noticed he was a day’s pay short. He hadn’t received pay for
the last day he worked, Sunday, December 13, when he was
on standby but was called in to go to Atlantic City with a
bus when somebody else’s assigned bus broke down. He
went to Atlantic City and came back late Sunday night or
early Monday morning. He told Kent he was short, Kent said
he would talk to Linda, the payroll clerk, to see if he could
get him the pay. Two minutes later Schoolman came out
with his check. He told Molaro if he wanted to get paid for
that ‘‘fucking day, get a fucking lawyer and get off my prop-
erty now. I am going to call the fucking police.’’ Molaro
took his check and went out the door. LoDestro also yelled
at him to get off the ‘‘fucking property now.’’ A few days
later Molaro received a check for his December 13 Atlantic
City trip by certified mail. Molaro acknowledged having
made a mistake on his recap sheet. On his sheet he had listed
his original assignment of a trip to Atlantic City for Satur-
day, December 12. He did this when he saw the assignment
on the board. In fact, he did not go to Atlantic City on Satur-
day. He merged at exit 32 on the Long Island Expressway.
When there aren’t enough passengers on two buses, whether
of the same or different companies, both scheduled for the
same destination, the passengers would be merged onto one
bus, and the other bus, in this case Molaro’s, would return
to the facility and later return to the merge location to pick
them up when the passengers return from Atlantic City. The
bus driver would be informed of the merge and its location
by the dispatcher. The pay for a merge was $80 and for a
round trip to Atlantic City was $140. Molaro failed to enter
the merge on his recap sheet because it slipped his mind. He
just didn’t think of it.
Molaro’s last payroll week ran from Friday, December 11
to Thursday, December 17. The assignments for that week
were posted on late Monday, December 7 or Tuesday, De-
cember 8, after the unit drivers had an opportunity to pick
assignments from a posted bid sheet from the prior Friday
or Saturday until Monday, December 7. Molaro filled out his
recap sheet on either Tuesday or Wednesday, December 8 or
9.
In its answer to the complaint, Respondent had admitted
subparagraphs 14(a), (b), and (c) in which the Regional Di-
rector had alleged as 8(a)(1) violations that on November 5,
11, and 23, 1992, respectively, Respondent had placed writ-
ten warnings in Molaro’s personnel file. Those warnings, as
well as a fourth, were introduced into evidence by counsel
for General Counsel. They each contain handwriting on a
printed Employee Warning Notice form. The first, with a
date of warning of November 5, 1992, describes an incident
of the same date, ‘‘Bob Molaro told by Vice-President Frank
LoDestro about disrupting office and garage area. He is con-
stantly wandering throughout the building.’’ The action to be
taken is a warning with the consequence of a suspension if
the incident should occur again. The place for employee sig-
nature acknowledging having read and understood the notice
is blank. The supervisor signing is Jeffrey Goldwasser and
the date for signing is November 5. The second, is dated No-
vember 11, and recounts an incident of the same date in
which ‘‘Driver had radar Detector in vehicle.’’ Again there
is no employee signature but there is Goldwassers with a
date of November 11. The third warning notice is dated No-
vember 25 and lists as an incident on November 23, ‘‘Opera-
tor of Bus Somehow Caused Driver of Car to Attack Vehi-
cle, 2nd incident like this where damage was caused,
11/15/91 1st Incident Took Place.’’ Under the heading, Ac-
tion to be taken if incident occurs again. Under the heading,
Action to be taken if incident occurs again the writer wrote,
‘‘Dismissal—driver is accountable for vehicle.’’ Again, there
is no employee signature but there is Goldwasser’s on No-
vember 25. The fourth warning notice is actually a record of
Molero’s dismissal and records ‘‘Just not working out during
his 3-month period of probation.’’ There is no employee sig-
nature and Goldwasser is listed as signing on December 16.
It was not until the fourth day of the hearing after General
Counsel had rested his case-in-chief that Respondent counsel
moved for the first time to dismiss the allegations in subpara-
graph 14(a), (b), and (c) on the ground that there was no evi-
dence that the written warnings were placed in the personnel
file on the dates alleged. When reminded that Respondent
had admitted these allegations in its answer, Respondent
counsel now sought to amend its answer. He admitted further
that these alleged warnings were not written on the dates in-
dicated at all, and were not placed in the personnel file until
after the filing of the unfair labor practice charge alleging
Molaro’s discriminatory discharge. The Molaro charge was
filed on February 26, 1993. They were written to assist the
Company in defending the charges. Thus, these four docu-
ments did not exist at the time Molaro was discharged. I de-
nied the motion to amend the answer.
Jeffrey Goldwasser testified that he did, indeed, write the
warnings after Molaro was discharged. Respondent’s labor
attorney at the time asked him to write them. Goldwasser’s
testimony at the hearing contradicts his pretrial affidavit in
which he swears that on November 5, November 11, and No-
vember 25 he wrote warning notices not shown to Molaro.
Although admitting these sworn statements were not true,
Goldwasser permitted them to be included in his affidavit
708 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
which he read and then executed. Goldwasser’s testimony
was impeached by this major and glaring contradiction, and,
particularly by Goldwassers failure to admit to the Board
agent the circumstances surrounding the creation of the
‘‘warning notices.’’ Goldwasser even testified that he used
the warning notice forms so they would look more official.
Thus, when Goldwasser for example wrote on the Novem-
ber 5 warning notice that ‘‘Driver will be suspended’’ and
when he wrote on the November 25 notice ‘‘Dismissal—
Driver is accountable for vehicle’’ Molaro had already been
fired. Significantly, on the fourth warning, documenting
Molaro’s dismissal, nothing is said about the error on
Molaro’s last recap sheet.
Goldwasser also swore in his affidavit that ‘‘The Company
used a memo dated 12–12–91 that radar detectors were not
allowed and their use would carry a 2-day suspension.
Molaro was the only person I know of caught with a radar
detector.’’ Yet, Molaro was not suspended for his alleged in-
fraction. Neither was he given a written warning notice.
Molaro testified on direct examination, as to the bus dam-
age incident. In November 1992, he was driving a Classic
Coach bus in Manhattan, when a car cut in front of him. He
blew the horn and the horn stuck. The driver of the car
stopped, got out, came back and punched the door on the
bus, breaking the glass in the door. Molaro completed a com-
pany incident report on the matter. He was not disciplined
nor given a warning notice and recalls no conversation about
it. About a year before that incident, another driver had cut
in front of Molaro on the road. He went ahead and stopped
short again. Molaro in his bus went to go around the car and
the driver stopped, got out and started kicking the headlights,
and broke the mirror. Molaro drove off into a parking lot to
get away and the driver followed, with baseball bat and pro-
ceeded to smash everything on the bus. He understood the
Company was going to press criminal charges against the
perpetrator, but he finally paid for the damages. Molaro was
not disciplined over the incident and either Frank or Jeff
made a joke about it, mentioning putting a sign on the bus
that said ‘‘hit me.’’ With respect to neither incident did
Molaro intentionally provoke the attack. Neither did the ear-
lier incident prevent Respondent from providing the ref-
erence letter or later reemploying him.
Molaro denied being reprimanded or spoken to about
speaking with coworkers. On one occasion, around October
2, Molaro saw Jeff Goldwasser and Linda, the payroll clerk,
together in a diner and mentioned it later to a mechanic.
Later, Goldwasser accused him of starting rumors that he
was sleeping with Linda.
On another occasion, Molaro came into work and had car-
ried a radar detector he used in his car, to a seat of his bus,
because his car, a stationwagon, did not have a covered stor-
age area. He was going to stow it in his bag which he had
also carried to the bus. Goldwasser saw the detector and
asked what he was doing with it. Molaro explained he was
going to put it in his bag because he didn’t want to leave
it in his car. He was not disciplined or warned over the inci-
dent.
On cross-examination, Molaro acknowledged a posted
company rule prohibiting radar detectors on buses. He was
also refreshed from his own pretrial affidavit that on Decem-
ber 17 Kent came back and told him Linda couldn’t find his
toll receipts, but to return the following week to receive his
pay for the Sunday, December 13 Atlantic City run.
As to the error on his recap sheet, although he mentioned
a merge to Kent on December 17, he had not noticed the
error—the failure to change the December 12 Atlantic City
trip when he handed in the sheet, folded. Neither did he no-
tice the error on Sunday December 13, when he added that
trip to his sheet, which previously listed standby. While
Molaro agreed he had been placed at the bottom of the se-
niority list when he returned from Florida in October 1992,
he disputes he was ever told he was being placed on proba-
tion as a new employee. After starting in 1985, Molaro left
the Company voluntarily in 1987, returned at the end of
1988, worked for almost a year and left again and returned
in 1991, left again at the end of February, 1992, and then
came back for the fourth time in October, 1992. His leavings
were caused by problems in caring for a son while working
Classic Coach irregular hours, and once, entering the bus
business.
Molaro acknowledged receiving $5000 from Local 804
over a period of time in 10 separate payments once or twice
a week starting in January, 1993. The arrangement arose
when Molaro was asked to do some paperwork, including
sorting and filing, which he performed both at home and in
the Union’s office. Later testimony, established that Molaro
was also involved in continued solicitations of coach drivers
for the Union up to the election held in February 1993.
Molaro’s payment arrangement has not influenced in any
way my judgment regarding his credibility as a witness in
this proceeding which I find to be generally good and which
echoes Goldwasser’s own written evaluation of Molaro’s
trustworthiness and reliability.
While Molaro had testified earlier he had not been rep-
rimanded for annoying other employees, and had only talked
to the mechanics when he had a problem on his bus, he did
acknowledge that LoDestro expressed annoyance with his
talking to the mechanic in the shop and told him to get out
when he was there describing a mechanical problem with his
bus and even changed his testimony to admit that he talked
to mechanics about other matters both inside and outside the
shop. I do not deem this conflict sufficiently serious to war-
rant discrediting Molaro’s testimony on the salient features
of his testimony regarding the outstanding nature of his
union activity and the Company’s failure to follow its own
progressive discipline rules by either warning or disciplining
him on the occasion of his infractions enumerated. Respond-
ent’s Employee Handbook dated, issued, and distributed to
employees starting in April 1992 provides for a system of
constructive discipline designed to provide an opportunity for
employees to explain and improve their performance and
calls for progressively more serious measures, running from
counseling, to written warnings, to suspension to termination.
None of these procedures were followed in Molaro’s case,
and, in fact, a record was fraudulently created to appear to
match the policy, although without Respondent having pro-
vided Molaro with any notice or opportunity to improve his
conduct. I also find that, in accordance with Molaro’s ac-
count, he turned in his last recap sheet on December 17, the
day after he was fired. LoDestro’s and Goldwasser’s ac-
counts to the contrary, coming from witnesses whose verac-
ity has been impeached, are not credited. Nonetheless, I will
709CLASSIC COACH
examine the merits of Respondent’s claim that the recap
sheet error was the trigger for Molaro’s discharge.
Concerning the mistake on Molaro’s recap sheet, other
government witnesses minimized its importance and con-
firmed that such mistakes made by others never resulted in
discipline. Joseph San Felipo, operations manager from
March 1990, to March 1991, testified that the recap sheets,
which she called salary recap sheets, although an aid in pre-
paring payroll, were not as accurate as the daily schedules
which she prepared of driver assignments for posting because
at times the men forgot to record changes on them and even
failed to hand them in—they were supposed to be submitted
on Friday—and she could not depend on them in preparing
payroll. In her training, in fact, she wasn’t told to use them
to prepare payroll. Although in her view not done inten-
tionally, drivers would fail to remove a trip from a sheet al-
though canceled. San Felipo was in contact each morning
with the dispatchers, even on Sunday when she would call
in, to learn if a merge took place or a trip was otherwise
cancelled so as to update her own paperwork derived from
the daily schedules in order to prepare a proper payroll. An
independent check on whether the driver actually performed
an assignment, such as a trip to Atlantic City, was the pres-
ence of toll receipts. If they were not turned in by the driver,
there was no basis for issuing pay for that trip.
According to San Felipo, drivers several times failed to
change an Atlantic City line run on their sheets to a merge
and, while she was employed as manager, were not dis-
ciplined. San Felipo is credited.
Another General Counsel witness, Frances Merkle, was
first hired as a reservationist in October 1989, but later trans-
ferred in May 1991, to act as assistant to the Coach oper-
ations manager, returned to the reservation department in
June 1992, as supervisor of reservationists and was termi-
nated in February 1993, after having words with Dan Mullin,
head dispatcher at the time, about the illegibility of her hand-
writing. Merkle testified that during the period of almost a
year she worked in coach operation a couple of drivers a
week—ultimately, almost every driver—made mistakes in
their recap sheets. These included failing to list a merge, dis-
crepancies regarding claims for overtime pay on night tour-
ing (recall the matter involving driver LaPetina), or on a
charter exceeding 6 hours’ stay in Atlantic City, and when
changes were instituted in the $40 standby pay, eliminating
it altogether if the driver received a driving assignment be-
fore a certain hour in the morning. In Merkle’s estimation,
these discrepancies were ‘‘no big deal’’ and she would cor-
rect them if she caught them on the sheet. On occasion,
Linda, the bookkeeper, would come to her saying she had no
toll receipts and asking if a driver did a merge, and Merkle
would check the dispatch sheet line counts prepared by the
dispatcher on duty when there was a merge, to determine if
there was a merge. The driver who had submitted the recap
sheet was not contacted about the discrepancy. Merkle could
not recall any discipline for these errors. She would know if
there had been a suspension of a driver because Goldwasser
would have to inform her so she didn’t schedule the driver
for any work.
Merkle also testified that once Frank LoDestro called her
into his office and told her not to talk about the Union. One
of the drivers had accused her of doing that. On another oc-
casion, in either December 1992 or January 1993, while
working in the dispatch office with the dispatcher, Kenny
Giordano, LoDestro pointed to a coach driver’s list of names
and phone numbers posted on a closet door, said ‘‘do you
want to know who are the union organizers,’’ and pointed
to some names, Eddie LaPetina, Tony luzzolino, and Rich
Christiano. She also thought he pointed to Bob Molaro’s
name but was not 100 percent sure. Merkle asked him how
he knew and he said because they ‘‘were Italian and Italians
are union organizers.’’
During her cross-examination, Merkle said the drivers list
LoDestro referred to was at least 6-months old and had no
date on it. Merkle believes she typed up the list during her
year in the Coach Department. Her stay there overlapped
Molaro’s third period of employment by many months in
1991. Neither a February 22, 1992 nor a June 20, 1992 driv-
ers seniority list contains Molaro’s name. These facts do not
preclude the Company from having retained on a closet door
an older, undated list. In Merkle’s March 1993 affidavit she
states LoDestro mentioned four drivers on a list, but could
only recall three, not including Molaro. At the time, she
didn’t fully concentrate and was nervous about going to the
Regional Office. More recently, after devoting more thinking
to the matter, she now believes the fourth name mentioned
might have been Bob’s.
LoDestro’s denial of a conversation with Merkle as to who
was leading a union drive is not credited. I also find that
Merkle’s obvious frankness in her inability to positively and
beyond a doubt identify the fourth employee to whom
LoDestro referred in December or January, lends weight to
Molaro’s identification as that fourth employee. I also credit
Merkle’s testimony generally as to her handling of recap
sheets and errors on them.
A third witness, LaPetina, also testified that errors on the
recap sheet were not treated seriously. On a few occasions
he put in for a particular amount on a trip to New York City
which was probably incorrect, but knew that if the sum he
submitted was determined to be incorrect by Linda, in ac-
counting, he would just not get the pay he listed but a lesser
sum. He never was disciplined for these claims being dis-
allowed. La Petina, previously credited on his interchanges
with Classic Coach officials, is likewise credited here.
LoDestro testified about meeting with Molaro in October
to advise him to stop annoying people in the shop and in the
bus operations rooms and in spreading a rumor he was going
to a particular school to take over Kent’s job. At this point
in his testimony LoDestro denied knowledge of Molaro’s
union activities and expressed regret for having given Molaro
a loan of a car; if he had thought Molaro had been a union
activist maybe he wouldn’t have loaned the car. Shortly
afterward LoDestro saw Molaro at the shop entrance and told
him he was playing games, he was lying that he wasn’t an-
noying people in the shop because ‘‘this time I caught him.’’
LoDestro did not include this second conversation in his affi-
davit because the Board agent did not ask him about it, a de-
cidedly weak explanation which I reject. LoDestro has been
previously discredited on this testimony; LoDestro’s earlier
claim that this was the conversation to which Molaro referred
when attributing to LoDestro the accusation about stirring up
trouble in the yard has been rejected. Molaro has admitted
being told to leave the shop by LoDestro but this direction
never resulted in a reprimand or written warning, until Re-
710 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
spondent fictionalized an account after Molaro’s discharge
and the filing of the Union’s charge on his behalf.
LoDestro’s lack of credibility was demonstrated anew
when after describing one employee, Moses Hargrove, com-
ing to him before the election to voice his support for the
Union even though ‘‘the Company treated him good,’’
LoDestro now admitted having specific knowledge of other
employees’ support of the Union before the election, naming
Ramos, LaPetina, and Molaro in this regard. When then
asked how he was aware of Molaro’s involvement, LoDestro
immediately contradicted his prior acknowledgment by an-
swering ‘‘I just assumed everybody that was there was in-
volved in the Union. No particular or factual information that
they were.’’ (Tr. 851.) He added he also could not remember
anything that Ramos and LaPetina said or did which gave
him such knowledge. Ramos’ and LaPetina’s credited testi-
mony describing their unlawful interrogations and coercion
by Schoolman have been previously described. LoDestro
would have clearly been privy to the contents of those con-
versations. LoDestro’s direct coercive conduct toward both
LaPetina in January 1993, and Ramos at the end of August
1992, have also been summarized.
LoDestro acknowledged bringing Molaro back four times
and considering him an excellent driver. LoDestro also
claimed to have discussed the radar detector incident as well
as the recap sheet error with Goldwasser ‘‘some time prior
to’’ Molaro’s discharge in December. (Tr. 856.) He,
Goldwasser, and Schoolman all participated in a joint meet-
ing at which the decision was made to fire Molaro. They
probably discussed the falsification of the recap sheet the
same day or the day before the firing. He is sure he saw it
before Molaro was fired. To LoDestro the falsification of the
sheet was the main reason for firing Molaro. Without it, he
probably would not have fired Molaro. LoDestro agreed that
he would not have fired Molaro a month earlier for talking
to employees in the shop when he did not even give him a
written warning. Yet, LoDestro agreed that in rehiring
Molaro four times he didn’t think Molaro was dishonest. It
is also significant that LoDestro did not refer to the bus dam-
age incidents in discussing the reasons for discharging
Molaro. LoDestro insisted, also, in spite of the foregoing,
that it was his position that a driver who makes a mistake
on a recap sheet should be terminated without even being
asked what the nature of the mistake was. In fact, he agreed
Molaro was not asked before being fired. He deemed the
mistake as equivalent to stealing from the Company. Yet, in
another inconsistent response LoDestro, who admitted igno-
rance of the recap sheets and their completion by drivers, re-
luctantly agreed that it was possible for mistakes to be made
on them. I also discount LoDestro’s further assertion that the
sheets are very important documents because ‘‘that’s how
they get paid.’’ (Tr. 936.)
As further evidence of the Company’s hostility toward
Molaro’s union activity, on January 18, 1993, Schoolman cir-
culated a letter to Respondent’s employees in which, inter
alia, he gave two reasons as to why the Teamsters were
going after it, the second being ‘‘Bob Molaro wants to be
Shop Steward.’’ In stressing this rumor which it had received
from other drivers, Classic Coach was manifesting a special
concern, even an obsession with, the union adherence of a
driver it had recently fired, a concern and obsession which
I conclude largely motivated its conduct toward him some
weeks prior on December 16, 1992, the day of his discharge.
Goldwasser evidenced his animosity toward Molaro by
testifying that, finally, after the salary recap incident, ‘‘I de-
cided that enough was enough.’’ He consulted with Frank
LoDestro, ‘‘I said I finally had it; I finally have a recap sheet
that is falsified on Bob Molaro and considering the past inci-
dents we have had with him, this was it.’’ (Tr. 989.)
Goldwasser later asserted that Molaro’s presence annoyed
him. After reviewing notes, which Goldwasser admitted were
not retained in Molaro’s file, although he first swore they
were in Molaro’s file, he prepared the ‘‘warning notices’’
sometime in early January. The Union’s initial charge alleg-
ing Molaro’s unlawful discharge was filed on December 28,
1992.
Goldwasser has previously been thoroughly discredited as
a witness. I do not credit his description of the first bus inci-
dent as an attack by a bunch of kids, or that Molaro had his
radar detector already hooked up in the dashboard of his bus.
Goldwasser described having seen Molaro’s last recap sheet
on Jim Kent’s desk on Wednesday, December 16, and knew
right away that the Saturday Atlantic City trip was a merge.
In seizing on the recap sheet error, Goldwasser, in agreement
with LoDestro, expressed the view that none of the earlier
infractions had risen to the level of seriousness which were
sufficient to trigger even a written warning. Thus, it was the
recap sheet incident which alone warranted termination.
These responses magnify the fraud Goldwasser perpetrated
by crafting the bogus warning notices. Furthermore, while
Goldwasser never personally saw another mistake on these
recap sheets, his experience, even if believed, which I do not,
does not undermine the experience of the three witnesses
who testified to the contrary. And even Goldwasser testified,
in agreement with two of them, that sometimes the sheets
turned in are blank as to rate and that the line run sheets pre-
pared daily by the dispatchers provide the last word on a
merge or other change in assignments. I also do not credit
Goldwasser that he only learned about Local 804 when it
filed a petition, and that he had only heard a lot of rumors
previously about Local 282.
Schoolman has been previously discredited. Although he
considered Molaro’s bus incidents serious matters, even after
the second one he failed to take any action against Molaro.
He claims to have been talked out of it by LoDestro who
told him ‘‘you can’t deny a guy a livelihood because he has
an accident.’’ Schoolman also noted Molaro’s skills as a
driver and that customers made requests for him. Schoolman
also acknowledged receiving partial restitution for the $2600
damage done on the first incident after having the two youth-
ful perpetrators arrested.
Schoolman also readily admitted his strong antipathy to
having a union represent the coach drivers, and, in particular,
Local 804, and he wanted to make that intention very clear.
Based on the foregoing, I conclude that counsel for the
General Counsel has made a prima facie showing that
Molaro’s exercise of the rights protected by Section 7 of the
Act was a substantial or motivating factor in his discharge.
See NLRB v. Transportation Management Corp., 461 U.S.
393, 400 (1983). I further conclude that Classic Coach has
been unable to show by a preponderance of the evidence,
that it would have discharged Molaro even in the absence of
his protected conduct. Wright Line, 251 NLRB 1083 (1980),
711CLASSIC COACH
affd. 662 F.2d 899 (1st Cir. 1981), cert. denied, 455 U.S. 989
(1982).
Respondent’s antiunion animus shown towards Local 804
and, in particular towards Molaro’s protected activity, is well
documented on this record. So is company knowledge of
Molaro’s union involvement, based on LoDestro’s interroga-
tion of him, apart from Merkle’s recollection of LoDestro’s
probable inclusion of Molaro among those few employees, of
Italian extraction, including Iuzzolino who were instrumental
in leading the union campaign. There is also sufficient evi-
dence in the record, contrary to Respondent’s argument at
pages 12–13 of its brief, from which to draw the inference
that Molaro’s union solicitations in the company parking
area, or yard, were viewed by LoDestro, at least, among
other company managers, even apart from the evidence of
LoDestro’s direct questioning of Molaro’s conduct in the
yard. There is also little question that in terms of timing, Re-
spondent terminated Molaro within days of his Section 7
conduct in soliciting cards for and distributing literature for
Local 804 on and after December 3, when he received the
material from the Union. Respondent acted precipitately
against Molaro without prior warning, without following its
own written disciplinary policy, and without providing him
with any rationale for his discharge. Even the main, in all
likelihood, the sole ground upon which Respondent relies for
his discharge was not in existence on the day of his dis-
charge and thus shows its pretextual nature. Even if Re-
spondent had Molaro’s recap sheet in its possession on De-
cember 16, the credible weight of the evidence establishes
that Molaro’s mistake was not a recognized or warranted
basis for discharge, much less for less severe discipline. Re-
spondent’s fraudulent attempt to construct a disciplinary his-
tory for Molaro compounds its discriminatory motive. Ac-
cordingly, I conclude that Molaro was discharged in violation
of Section 8(a)(3) and (1) of the Act, and I will recommend
that his discharge be remedied and his challenged ballot be
opened and counted.
C. The Discharge of Employee Anthony Iuzzolino
Iuzzolino’s participation in the end of August 1992 meet-
ing at which he defended and supported union representation
against LoDestro’s antiunion diatribe has been recounted. So,
too, has LoDestro’s later fingering of Iuzzolino as one of the
few union ringleadlers among employees, as well as
Schoolman’s February 6 coercive interrogation of Iuzzolino,
his confrontation as to Iuzzolino’s Union activities, and un-
lawful threat that a strike would ensue if the union achieved
bargaining status. Later testimony will show that on the sec-
ond day of the representation election, on February 11,
Schoolman saw Iuzzolino in the company of union represent-
atives at a local diner.
Iuzzolino began employment as a part-timer in July, 1989,
becoming a full-time coach driver in June, 1991. After an
August 4, 1992 meeting he attended at Local 282’s office,
Iuzzolino discussed the union with drivers at several loca-
tions, in the yard, at jobsites, sitting in buses, and eating
lunch. He passed out union literature to 6 or 7 employees.
He attended the November 17 meeting with Local 804, and
afterward, discussed the Union with probably every driver
and got signed authorization cards from a few of them.
In January 1993, he learned that his seniority had been re-
duced, and he had been given a new starting date of Decem-
ber 14, 1992. As a result, he lost extra seniority pay he had
previously received in certain jobs and 5 accrued sick days.
He also lost 2 weeks’ vacation pay per year. He learned all
this not from management, but from the bookkeeper Linda
when he complained about a shortage in his pay. The change
in seniority date apparently did not adversely affect his se-
niority for purposes of bidding weekly on posted jobs, which
were assigned in order of seniority, except for a limited op-
portunity to receive assignments at the specific request of
customers.
The day, February 6, a Saturday, when Schoolman had
met privately with Iuzzolino to vent his antiunion views, be-
cause of a snow storm, Iuzzolino had arrived late and lost
his assigned job to a standy, Andy Cilla. When Schoolman
approached him, Iuzzolino was picking his assignments for
the following week running from Friday, February 12, to
Thursday, February 18, off the posted bid sheet and placing
his picks on a posted pick sheet. He picked work assign-
ments for every day that week, including multiple alternate
jobs for each day. For each day he also listed as an alter-
native, an Atlantic City run.
The evening of February 6, Jim Kent called Iuzzolino’s
home and left a message with his wife to call him. Iuzzolino
returned the call to Kent’s home telephone number; Kent
asked him if he was going to attend the meeting scheduled
for the next night at Classic Coach. Iuzzolino said he had
spoken to Mr. Schoolman about it that day, Kent said yes,
he, Schoolman, just wanted him to call everyone to remind
them and ‘‘see if you’re going to attend and get as many
people as you can.’’ Iuzzolino told Kent that he might not
be able to attend, and, in fact, did not.
From Sunday, February 7, to Thursday, February 11, 1993,
Iuzzolino was not scheduled for any driving assignments.
After Saturday, February 6, the next time he appeared at the
facility was on February 11, when he voted in the election.
On that occasion, Iuzzolino also noted his weekly schedule
for the workweek starting the following day. He was sched-
uled off for Friday, February 12 and Saturday, February 13,
was assigned standby for Sunday and Monday, February 14
and 15, was assigned an airport run on Tuesday, February 16
and a Nassau job on Wednesday, February 17, and standby
on Thursday, February 18. On standby the driver is obligated
to come in to the facility at 5:30 a.m. and stay until 9:30
p.m. in case he is needed. He was paid $40 for this. A driver
could also receive an assignment of on call, where he stays
at home, but is ready to report for a driving assignment if
needed, for which he is paid $20. A driver can also receive
a scheduled day off, as Iuzzolino did on February 12 and 13.
When Iuzzolino arrived at the facility early in the morning
of February 11 he was in the lobby, talking with two em-
ployees when Jim Kent walked out of the office, threw two
pairs of pants and a vest on the counter, and confirmed they
had been sitting inside for Iuzzolino. These were new com-
pany uniforms which were being issued to the coach drivers.
Later in the morning Iuzzolino heard from another driver,
Lenny Ungar, that Kent wanted to see him, but that Kent
was not in his office then. Twenty minutes later, when Ungar
went back into the office to see Linda, the bookkeeper, he
asked Ungar to ask Kent when he wanted to see him.
Iuzzolino now learned from Unger that Kent did not want to
see him then, because he had to talk to someone first.
712 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
After voting in the election on February 11, Iuzzolino
went into his car and pulled it around to talk with Bob
Molaro and union business agent Tony Magrene who were
also sitting in a car parked off the property. After a while,
when the morning voting hours concluded, Iuzzolino joined
with Molaro, LaPetina, Magrene, and another union agent,
Joe DiFazio, in going to the Airport Diner for breakfast. As
they sat together and waited for their orders, William
Schoolman walked in, placed an outgoing order and saw
Iuzzolino together with the union agents and a few employ-
ees.
Iuzzolino then returned to the facility and waited around
off and on the parking lot for the outcome of the voting and
the results of the election. During this period Iuzzolino saw
Kent again about 30 feet away as he walked to his car, went
back inside, and then walked out again to go to lunch. On
neither occasion did they speak with each other.
On Friday, February 12, Iuzzolino called the facility to see
if he was still on standby for Sunday, February 14, or had
been moved up to a job. He asked for Kent or Goldwasser
but both were gone, apparently having left because it was
snowing. The next day, Saturday, February 13, he telephoned
the company, got Maureen, one of the reservationist who an-
swers the phones, and asked her if he was still on standby
the next day. She checked the posted sheet and told him he
was not, she saw his name had been crossed out and standby
had been assigned to a driver junior in seniority to him.
Iuzzolino then asked her to check for Monday when he had
also been assigned standby. Maureen told him he had been
taken off Monday also. He asked her what was going on.
She didn’t know. Iuzzolino said he was going to call Jim
Kent right then.
Iuzzolino then telephoned Kent at home. His wife an-
swered and Iuzzolino asked for Jim Kent. She said, ‘‘Will
you please hold on?’’ and he heard Kent in the background
say ‘‘If its a driver I don’t want to speak to him.’’ She asked
Iuzzolino who was calling and he identified himself.
Iuzzolino heard Kent’s wife tell him ‘‘It’s Tony Iuzzolino’’
and Kent responded, ‘‘Oh, we’re trying to get rid of him.
Tell him I can’t talk to him now, call me Monday.’’ When
Mrs. Kent got back on the phone, she told Iuzzolino that
Kent couldn’t come to the phone and ‘‘He’ll call you back.’’
to make sure he called. Iuzzolino said, ‘‘Please make sure he
does, it’s very important. I have to speak to him tonight.’’
She said she would, asked for his telephone number, and
Iuzzolino gave it to her. Iuzzolino did not receive a return
call from Kent.
On Monday, February 15, Iuzzolino telephoned the facility
at around 4 p.m. Ruth, the receptionist, put him through to
Jim Kent’s extension, where it kept ringing, then went back
to her. Iuzzolino did not leave a message, but instead, after
5 p.m. called the dispatcher, Roy, and asked him to check
the sheet for him. Iuzzolino now learned that his name had
been removed from the Tuesday, February 16 assignment.
He told Roy he didn’t know what was going on, he had now
been taken off 3 days, and Roy said, ‘‘I don’t know what
to tell you.’’
On Tuesday evening, February 16, Iuzzolino went in to the
facility to check the sheet and saw that he had been taken
off the rest of the week. Iuzzolino now decided to try to han-
dle his removals by telephone. He next tried to call in to the
facility on Thursday, February 18, did not reach Kent but left
a message he had called and hadn’t heard from him. He then
received a call from Molaro who had learned from Tom
Tinsley that he had been terminated because the Company
could not get in touch with him.
The next day, Friday February 19, Iuzzolino telephoned
and reached Kent from Local 804’s offices. He asked Kent
what his assignments were. Kent said ‘Who is this, Tony
Iuzzolino, you’re looking for work? Iuzzolino said, ‘‘Yes,
why not.’’ Kent said, ‘‘You got to be kidding.’’ Iuzzolino
asked, ‘‘What do you mean?’’ Kent said, ‘‘You no longer
work here. You’ve been terminated.’’ Iuzzolino asked why.
He said, ‘‘Because we haven’t been able to get a hold of
you, get in touch with you.’’ Iuzzolino asked, ‘‘Why would
you want to get in touch with me?’’ Kent said, ‘‘Well, you
never called in to confirm about your jobs.’’ Iuzzolino said
to him, ‘‘Why should I call in, I was already assigned
work.’’ Kent said, ‘‘Well, we tried to get a hold of you.’’
Iuzzolino asked ‘‘Why did you change my work? Why was
I required to call in, is this new company policy, that when
we are assigned a job and we’re assigned work that we have
to call in?’’ He said, ‘‘We never had to in the past, why do
we have to now?’’ Kent didn’t respond. Iuzzolino now asked
why he was taken off of work for the whole week. Kent
said, ‘‘Because we couldn’t get in touch with you.’’ Again,
Iuzzolino asked, ‘‘Why did we have to have contact if I
knew my assigned work?’’ and, again, Kent didn’t answer.
Kent finally said, ‘‘You’ll have to take it up with Jeff’’ when
Iuzzolino asked to get back on the sheet and to work.
Iuzzolino now said ‘‘Let me ask you another question. I
called you the other night. You called me at home to remind
me of a meeting and I called you at your house and asked
for you to return a phone call, and you didn’t have the cour-
tesy to return that phone call.’’ Kent asked, ‘‘What phone
call?’’ Iuzzolino now explained and repeated what he heard
Kent say about the Company trying to get rid of him. Kent
denied saying that and Iuzzolino replied, ‘‘Well, okay, I’m
hearing things.’’ Kent now said, ‘‘When I’m home I don’t
answer the phone.’’ Iuzzolino said, ‘‘Oh really, from what I
understand Classic is a 24-hour-a-day, seven day a week op-
eration and its your job as Operations Manager to be avail-
able if a problem arises.’’ Kent repeated he didn’t make him-
self available at home. Iuzzolino asked, ‘‘Then why did you
call me at home the other day and asked my wife to have
me return your phone call if you don’t answer that at
home?’’ Kent did not answer.
Iuzzolino next called Goldwasser who repeated that ‘‘We
couldn’t get hold of you,’’ and confirmed he was terminated.
Goldwasser said Kent was on vacation, and ‘‘when he re-
turns we’ll have to discuss it.’’ As explained by Iuzzolino,
Goldwasser also failed to explain to him why, if he had a
set schedule he was supposed to do, he should have called.
Iuzzolino was not therefore called back to work or offered
any work. Iuzzolino had also noticed several occasions in the
last couple of months of his employment when he observed
drivers with less seniority being assigned jobs for which he
had picked.
Counsel for General Counsel, now on motion granted,
amended the date of Iuzzolino’s discharge to February 14,
the first date he was denied work, rather than the original
date alleged of February 19, when Iuzzolino learned for the
first time he had been terminated.
713CLASSIC COACH
On cross-examination, Iuzzolino was shown a handwritten
notice which read as follows:
12-4-94
TO—ALL DRIVER’S—
When you have a day off you must check in with
the office on that day, to find out if there are any
changes in the schedule for your next day’s work
Do not rely on the day’s that you have written down,
because there can be changes, if I do not call you by
4PM call me & I will let you know what the changes
are if any.
Jimmie ‘‘K’’
Iuzzolino recalled seeing it before, most likely on one oc-
casion, but could not remember seeing it posted for any ex-
tended period of time.
As to the matter of his failure to make picks for the work-
week starting Friday, February 19, Iuzzolino had explained
in earlier testimony he had given in an unemployment insur-
ance hearing that he had purposely not gone into Classic
Coach. He knew they were taking him off work and he was
trying to avoid a confrontation like what happened to Bob
Molaro. Iuzzolino also added testimony in this proceeding
that he didn’t pick assignments for the week commencing
February 19, because he had a habit of only picking when
he was at the facility working and at the time and dates he
would have picked, work was being taken away from him.
It is also apparent that by Saturday, February 13, when
Iuzzolino already knew assignments had been removed and
he telephoned Kent at home and inadvertently learned that
the Company was trying to get rid of him, Iuzzolino could
have reasonably concluded he was already fired and further
picking would have been futile.
The consequence of the August 31, 1992 meeting involv-
ing his status as a full-time employee was the issuance to
Iuzzolino of a written 3-day suspension which Iuzzolino ac-
knowledged and signed for not reporting for work. The issue
had been raised when Iuzzolino and Ramos had sought a
meeting at the time to discuss what Iuzzolino described as
a scheduling dispute. Iuzzolino had an assignment on August
28 from which he did not return until about 1:30 a.m. on Au-
gust 29. On his return he learned he had been assigned to
a trip that day at 6:30 a.m. He informed the dispatcher that
he had prior obligations, was scheduled off that day, and
DOT regulations mandated additional time off. Through the
dispatcher he learned that Jeff Goldwasser had told him that
he had to work, but Goldwasser would not speak directly
with him. Iuzzolino did not report for work on August 29
and then learned on August 30 and 31 that he had been re-
moved from assignments each of those days. It was then he
and Ramos arranged to meet with management about the
matter.
During his cross-examination, Respondent also developed
evidence showing that Iuzzolino had owned on August 31,
1992 a Ticketmaster outlet on Long Island, located in a
video store which he had owned until May, 1991. However,
while continuing to operate the outlet until he also sold it at
the end of 1992 to the individuals who had purchased the
video store, Iuzzolino spent very few hours there. He had an
arrangement with the new store owners to have his old em-
ployee, now employed by the new owners, tend to the
ticketmaster computer, in his absence and that of his son,
who helped him in the operation, until they purchased the
outlet.
During his cross-examination, Iuzzolino expanded on his
learning in December 1992, of the Company’s decision to re-
duce him to part-time status. Shortly before December 14, he
had a telephone conversation with Jim Kent. Kent told him
the Company wanted to take away his seniority, take him off
the full-time list because he wasn’t giving them enough days
work. Iuzzolino told him although he picked 5, 6, and 7 days
a week to work, he was never assigned 5, 6, or 7 days to
work. He was always assigned less. On many occasions there
were men junior to himself who received more work than he
did. Iuzzolino said the way to prove it is to take out the pick
sheets. He had requested this on several prior occasions.
Kent referred him to Goldwasser. With Goldwasser,
Iuzzolino also defended his picking plenty of days to work
but not being assigned those days. Again, Iuzzolino said it
can be proven by examining the pick sheets. Goldwasser
equivocated and Iuzzolino arranged to meet LoDestro accom-
panied by Ramos and Tinsley. At this meeting LoDestro also
referred to and scanned records showing Iuzzolino’s receiv-
ing weekly assignments of 1, 2 or 3 days. Iuzzolino’s protest
that the Company should examine the pick sheets was again
avoided while an argument ensued about whether Iuzzolino
purposely picked jobs he knew he would not get and
Iuzzolino, supported by Tinsley, vigorously disputed this
contention. Respondent refused to modify its position and
Iuzzolino’s change in seniority date to December 14, 1992,
was confirmed, while he continued to receive work based on
his same seniority slot of number 13. As a consequence,
Iuzzolino lost extra seniority pay, vacation, and sick leave.
Frank LoDestro testified that after he had concluded his
meeting with Ramos and Tinsley on August 31, during
which he agreed to try to restore some of the moneys the
employees had lost, he thought the union problems had been
worked out and told this to Goldwasser and Schoolman.
LoDestro later added that on August 31, Ramos told him he
would be quite satisfied without a union if certain changes
were made.
At the December 14 meeting with Iuzzolino, Ramos,
Tinsley, and Goldwasser, he accepted Iuzzolino’s promise to
be available 5 days a week and made the decision to restore
Iuzzolino to full-time benefits but he was overruled by
Schoolman. This, of course, is disputed by Iuzzolino, who is
credited, who says he was not successful in convincing
LoDestro to restore his status. In fact, because of an over-
sight, a decision made on August 31 to reduce Iuzzolino’s
status had not been implemented. Accounting had never been
informed.
As to Iuzzolino’s discharge, LoDestro had left the matter
up to Goldwasser. Apparently, Iuzzolino’s work habits were
suspect. LoDestro didn’t know ‘‘specifically’’ but Iuzzolino
‘‘never called in for a period of time, they couldn’t get a
hold of him, and decided he didn’t want to work there.’’
Goldwasser testified that at the August 31 meeting it had
been left up to him to decide on Iuzzolino’s discipline, and
he had decided on the 3-day suspension. As to his firing, he
had heard Jim Kent complain for a week about Iuzzolino and
finally told Kent enough is enough, lets finish with him. His
assignments for the week of February 12 to 19 had been re-
714 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
moved when they had not heard from him, first by Friday,
February 12, and then by Tuesday, February 16. Goldwasser
decided he would be terminated when he didn’t make picks
for the following week by Tuesday or Wednesday, February
16 or 17.
Although Goldwasser insisted that most of the drivers
called in on their days off, he finally could name only 8
drivers out of 20 on the seniority list who did so. When
shown the pick sheets for the weeks ending February 18 and
4 Goldwasser agreed that Iuzzolino had picked assignments
for 13 of the 14 days. The evidence also showed that for the
week ending January 28, 1993, Iuzzolino made picks for all
7 days of the week. The Respondent failed to produce a pick
sheet for the week ending February 11, 1993, although sub-
poenaed.
As to the notice to drivers to call in on their days off, it
had been placed in the individual drivers’ mail boxes. It had
not been prepared on official letterhead and was not referred
to in the employee handbook as formal company policy. A
glass bulletin board where the notice could have been pro-
tected from being removed or destroyed, was not installed
until January 1993.
While Respondent produced dispatch sheets for 13 dates
between August and December 1992, where Iuzzolino’s
name appears crossed out and in certain instances, another
name has been substituted, it is unclear what led to each of
these changes. Respondent claimed they were removals of
assignments for failing to call in or not showing up.
Iuzzolino in rebbutal testimony disputed this contention, re-
ferring to diary entries showing he was scheduled off on cer-
tain of these days for which he had made picks and was not
assigned, and was on call at home on others, was ill on still
others, and was 15 minutes late for a charter run on one oc-
casion. Two of the days were at the end of August, when
Iuzzolino’s name was removed for failure to take the early
morning run on August 29 as previously related.
Jim Kent acknowledged that he had signed the December
4, 1992 notice. He also had provided Iuzzolino with new re-
placement uniforms, pants, and vest on February 11, that the
Company was distributing to drivers at the time in their indi-
vidual sizes. Kent had wanted to talk with Iuzzolino before
he left that day about his not picking jobs. He later acknowl-
edged seeing Iuzzolino outside the facility in a car or truck
but did not talk with him because it was Iuzzolino’s duty to
come in to see him, he wasn’t going to chase him. He hadn’t
seen him since February 5 or 6. The next time they spoke
was on February 19 when he told Iuzzolino he was no longer
employed, that he had abandoned his job. Kent confirmed
there were no assignments without making picks in writing
or calling in.
On cross-examination, Kent now insisted that on February
11, the second day of the election, Iuzzolino had not yet
made his picks for the following week. He had the pick sheet
and the dates opposite Iuzzolino’s name was blank. As Kent
related Iuzzolino had to fill in his picks by Monday, Feb-
ruary 8. As earlier described, Iuzzolino had made picks for
every day that week, the pick sheet itself for February 12 to
19 having been received in evidence. Kent’s erroneous and
extremely damaging testimony had first been related at
Iuzzolino’s unemployment hearing where he had testified
that Iuzzolino was discharged because he did not bid for jobs
for the week of February 12 to 18.
Kent claimed at one point he had five telephone lines right
at his desk which he used to receive incoming calls from
drivers off on a particular day to check their assignments for
the following day. Later, this changed to two lines, with
three of them with the reservationists next door. Kent also
agreed that he did not keep a running list of drivers who had
to call in. Furthermore, it appeared that not all drivers were
obligated to call. If they knew they were going to work the
following day then they would work. Kent made a distinction
here between less and more dependable drivers. Neither did
the rule apply to part-timers who work weekends. If a driver
didn’t call in and there was a change in assignments affect-
ing him, and Kent couldn’t contact the driver, the driver usu-
ally did show up and receive his assignment. If there was a
change in assignment, for example, and the driver didn’t
show up, Kent had a standby driver ready to take the assign-
ment, and a back up driver on call at home. If the change
was a cancellation of an assignment the only inconvenience
was to the assigned driver who hadn’t called but who
showed up. That driver might also have had the option of
bumping another driver lower in seniority whose assignment
had not been cancelled. Thus, there was no impact or effect
on operations as a result of the cancellation. The new hand-
written December 4 rule was designed to obtain calls from
drivers on their days off on a more regular basis.
As to recap sheets, Kent agreed with Molaro and other
witnesses that they were invariably turned in from Thursday
at the end of a workweek until the following Monday.
Schoolman readily admitted seeing Iuzzolino seated at a
table together with Union Agents Magrene and DeFazio and
a few other employees the morning of February 11 at the
Airport diner. In spite of this admission Schoolman insisted
that when he discussed Iuzzolino’s termination with LoDistro
or Goldwasser, he was unaware of any union activity on his
part. This of course, also flies in the face of the credited tes-
timony regarding company knowledge of Iuzzolino’s union
advocacy dating at least from August 31, 1992.
Schoolman also confirmed LoDistro’s testimony that he
had overruled the restoration of Iuzzolino’s full-time senior-
ity status when he learned from accounting his benefits had
never been removed since August 31. Rather than relying on
LaDestro’s advise he told him he wanted to check out the
facts and learned that Iuzzolino’s work record since Septem-
ber had shown he had not been giving the Company 5 to 7
days a week. Schoolman claimed in testimony I do not credit
that when he made this decision in mid-December he was
unaware that Iuzzolino had engaged in any union activities.
Schoolman also changed his testimony, waivering on his
earlier firm recollection that Iuzzolino was at the diner with
union agents and two other employees, with a recollection
that ‘‘I think’’ Iuzzolino was there, but ‘‘I’m not positive.
There were a bunch of guys.’’ At this point, Schoolman
commenced fencing with union counsel, and sought to lessen
the impact of this unambiguous evidence of knowledge im-
mediately prior to Iuzzolino’s discharge by claiming that the
union was buying breakfast for everyone and he was sur-
prised more employees weren’t present.
Employee LaPetina credibly confirmed Iuzzolino’s account
that he does not call in on days he is scheduled off and has
never been disciplined for having failed to do so. Just like
Iuzzolino, LaPetina keeps a diary record of daily assignments
and report times which he records from the posted master
715CLASSIC COACH
pick sheet and daily worksheet. On the two or three occa-
sions there have been schedule changes in the day following
a day off, he has been called from the office. He has also
been called by Goldwasser to come in on his day off when
a special need has arisen caused by an emergency shutdown
of the Long Island Railroad. Neither had LaPetina every seen
the Respondent’s handwritten notice advising employees to
call in on their days off.
Schoolman testified he was surprised when he got the peti-
tion from Local 804 shortly after December 21, 1992. While
there had been rumors of organizing earlier, he was led to
believe that the driver’s problems had been resolved as a re-
sult of LoDestro’s August 31 meeting with Ramos and
Tinsley. These responses contradict the credited evidence of
LoDestro’s November interrogation of Molaro, August 31
threats to employees as well as other evidence of his knowl-
edge of union activity well before the filing of the petition.
Surely Schoolman was privy to LoDestro’s information and
Respondent’s unlawful responses to the Union’s organizing
drive were coordinated and an approved management re-
sponse.
The hostility which Schoolman exhibited to Local 804’s
campaign in the Company’s preelection literature as well as
his testimony was matched by the hostility Schoolman mani-
fested to the ‘‘hot head’’ Iuzzolino and to his leading union
role. In my judgment the clincher for Respondent was
Iuzzolino’s open association with union agents at the Airport
Diner on February 11 on a day that proved inconclusive for
the fulfillment of Schoolman and Respondent’s strong desire
to defeat the Union. The Union’s bid for representation rights
was going to continue and would be litigated. A strong union
advocate who sided with the Union at every turn in spite of
all of Respondent’s attempts at intimidation was still leading
the union faction among employees. Respondent’s discipline
of Iuzzolino in belatedly and without notice or opportunity
to be consulted, changing his seniority date in a clear act of
retaliation effected by Schoolman just 2 days before
Molaro’s unlawful termination, was not effective to stem
Iuzzolino’s union activity. In a blatant attempt to manufac-
ture a valid ground for discharge, Respondent removed
Iuzzolino’s assignments even 2 days in advance of his as-
serted obligation to call, and in spite of his contacts with Re-
spondent’s facility. Finally, Iuzzolino learned the true nature
of Respondent’s scheme for him when he overheard Kent not
only refuse to take his call, in spite of his earlier willingness
to receive Iuzzolino’s call at his home to seek his attendance
for the antiunion campaign speech by Schoolman, but he
now heard Kent surreptitiously inform his wife that Respond-
ent was seeking to terminate him. Iuzzolino’s fears were well
grounded and his good-faith efforts to contact Respondent to
comply with its policies and seek to retain his picked assign-
ments were to no avail. I conclude that Respondent seized
on a supposed but not established breach in a company pol-
icy, selectively, and therefore arbitrarily, enforced, under cir-
cumstances which it created to establish falsely that
Iuzzolino had failed to comply, to rid itself of a strong union
advocate. The sham nature of Respondent’s defense to the
charge is established finally through Kent’s fraudulent claim
that Iuzzolino had failed to pick assignments for his last
week when documentary evidence produced from Respond-
ent’s own file prove to the contrary. I conclude that Counsel
for General Counsel has made a prima facie showing that
Iuzzolino’s protected conduct was a motivating factor in his
reduction of seniority and his discharge, and Respondent has
failed to establish that it would have taken such action even
in the absence of such activity.
D. The Issue of Danny Mullen’s Status as Supervisor
and Challenge to His Ballot
A party seeking to exclude an individual from voting for
a collective-bargaining representative has the burden of es-
tablishing that that individual is ineligible to vote. Ohio Ma-
sonic Home, 295 NLRB 390, 393 (1989); Golden Fan Inn,
281 NLRB 226, 229–230 fn. 12 (1986). In representational
hearings, the burden of proving supervisory status is on the
party alleging that such status exists. Ohio Masonic Home,
supra; Tuscon Gas & Electric Co., 241 NLRB 181 (1979).
If the evidence of supervisory authority is inconclusive, the
Board has held that the party urging the supervisory exclu-
sion has not met its burden. Ohio Masonic Home, supra at
393, fn. 7.
The record here demonstrates that the charging party has
sufficiently demonstrated that Danny Mullen was a super-
visor within the meaning of Section 2(11) of the Act, which
defines a supervisor as:
. . . any individual having authority, in the interest
of the employer, to hire, transfer, suspend, lay off, re-
call, promote, discharge, assign, reward, or discipline
other employees, or responsibly to direct them, or to
adjust their grievances, or effectively to recommend
such action, if in connection with the foregoing the ex-
ercise of such authority is not of a merely routine or
clerical nature, but requires the use of independent
judgment.
The Union’s challenge is based on Mullen’s relationship to
nonunit personnel such as van and limousine drivers,
reservationists, and dispatchers, but not to job duties which
he performs in relation to the direction of coach drivers. (P.
Br. at 7, fn. 4.)
The authority to exercise supervisory acts makes an indi-
vidual a supervisor even if such acts apply to non-bargaining
unit employees. Detroit College of Business, 296 NLRB 318,
321 (1989). In Detroit College of Business, the Board held
that:
[T]o ascertain whether an individual’s exercise of su-
pervisory authority over employees outside the unit
warrants his exclusion as a supervisor, we must make
a complete examination of all the factors present to de-
termine the nature of the individual’s alliance with
management.
Relevant factors to be considered include, but are not limited
to, the business of the employer, the duties of the individuals
exercising supervisory authority and those of the bargaining
unit employees, the particular supervisory functions being ex-
ercised, the degree of control being exercised over the
nonunit employees, and the relative amount of interest the in-
dividuals at issue have in furthering the policies of the em-
ployer as opposed to those of the bargaining unit in which
they would be included. Id.
From the evidence set forth in the record, it is clear that
Mullen was so allied with management as to establish a dif-
716 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 In this connection it noteworthy that in R. Br. at 35, fn. 20, Re-
spondent appears to rely on an off-the-record discussion to support
its contention, in which it is alleged the Union stated it was not tak-
ing the position that the van and limousine drivers were statutory
employees.
ferentiation between him and other employees in the unit.
Mullen interviewed nonunit van and limousine applicants,
made hiring recommendations by and large followed by
management, made disciplinary judgments as to van and lim-
ousine drivers, authorized leaves of absence and assignments
of overtime for reservationists, and arranged work schedule
switches and vacation requests for dispatchers. For purposes
of determining whether Mullen was a supervisor, it does not
matter that the individuals that he exercised authority over
were not part of the bargaining unit. Detroit College of Busi-
ness, supra at 321. Furthermore, Mullen’s relationship with
Fran Merkle presents another aspect of his close alignment
with management. Merkle, a supervisor herself at the time of
the relevant events, in October or November, 1992, was in-
formed by LoDestro that Mullen was her supervisor and was
going to be assuming some of LoDestro’s responsibilities.
According to Merkle’s credited testimony, Mullen fired her
after he expressed dissatisfaction with the illegibility of her
handwriting on company documents. The foregoing conduct,
while not establishing an idicia of supervisory authority with
respect to rank and file employees, is important nonetheless
in showing the degree of Mullen’s alignment with manage-
ment’s interests and responsibilities as opposed to employee
interests and is a factor in establishing Mullen’s ineligibility
to vote in the representation election. See Albertson’s Inc.,
307 NLRB 787, 795 (1992) and Toyota of Berkely, 306
NLRB 893 (1992).
As to the van and limousine drivers, Respondent argues
that since they were independent contractors, and not statu-
tory employees, any authority which Mullen had over them
is irrelevant with respect to a determination of his super-
visory status over the bargaining unit. (R. Br. at 34–35.) The
Union, however, believes that the van and limousine drivers
are nonbargaining unit employees. In deciding whether
Mullen was a supervisor or a statutory employee under the
Act at the time of the election, and thus ineligible to vote,
a determination must be made as to the working status of the
van and limousine drivers.
The principal issue then is whether the van and limousine
drivers were independent contractors or company employees,
and who has the burden of proving so. The Union has amply
met its burden of establishing that Mullen possessed super-
visory authority. Since Respondent raised the defense that
even if Mullen was a supervisor, he was a supervisor of
independent contractors, and not of nonbargaining unit em-
ployees, Respondent should now have the burden of proving
such status.
Section 2(3) of the Act excludes from the definition of
employee ‘‘any individual having the status of an independ-
ent contractor.’’ In determining whether individuals are em-
ployees or independent contractors, the Board applies the
common law of agency, specifically the ‘‘right-of-control’’
test set forth in News Syndicate Co., 164 NLRB 422, 423–
24 (1967).
Where the one for whom the services are performed
retains the right to control the manner and means by
which the result is to be accomplished, the relationship
is one of employment; while, on the other hand, where
control is reserved only as to the result sought, the rela-
tionship is that of an independent contractor. The reso-
lution of this question depends on the facts of each
case, and no one factor is determinative.
There are many factors considered significant under the
‘‘right-of-control’’ test: (1) whether individuals perform
functions that are an essential part of the company’s normal
operation or operate an independent business; (2) whether
they have a permanent working relationship with the com-
pany which will ordinarily continue as long as performance
is satisfactory; (3) whether they do business in the compa-
ny’s name with assistance and guidance from company per-
sonnel; (4) whether the agreement which contains the terms
and conditions under which they operate is promulgated and
changed unilaterally by the company; (5) whether they ac-
count to the company for the funds they collect under a regu-
lar reporting procedure prescribed by the company; (6)
whether particular skills are required for the operation sub-
ject to the contract; (7) whether they have a proprietary inter-
est in the work in which they are engaged; and (8) whether
they have the opportunity to make decisions which involve
risks taken by the independent business person which may
result in a profit or loss. Metro Cars, 309 NLRB 513, 515
(1992); Standard Oil Co., 230 NLRB 967, 968 (1977); NLRB
v. Pepsi Cola Bottling Co., 455 F.2d 1134, 1141 (6th Cir.
1972). This analysis also includes an examination of the
‘‘entrepreneurial risk’’ undertaken by the party performing
the service and the method of compensation and tax with-
holding. NLRB v. United Insurance Co., 390 U.S. 254
(1968); Diamond L Transportation., 310 NLRB 630, 632
(1993); Metro Cars, supra at 515, Cardinal McCloskey Serv-
ices, 298 NLRB 434 (1990).
In the instant case, Respondent has not provided enough
evidence to support its contention that the van and limousine
drivers were independent contractors. The inadequate bits
and pieces provided by Respondent in the record, in fact,
supports just the opposite.4 First, driving assignments and re-
ferrals were given to the van and limousine drivers via the
reservationists and the dispatchers. When a customer request
was made, a ‘‘key card’’ was created by the reservationists
and subsequently given to the dispatcher, who used that card
to assign different vehicles to those particular jobs. The fact
that the employer controlled the assignments of each driver
shows that the drivers did business for the company with as-
sistance and guidance from company personnel and had no
input in these decisions.
LoDestro went on, ‘‘I’m very familiar with unions. I was
the president of a union myself and all they want is your
money, they don’t want anything else, they’re not out for
your interest.’’ Iuzzolino spoke up, ‘‘I too am very familiar
with unions, I’ve been a union member, and I’m not saying
unions are the answer to all of our problems, but at this stage
of the game we need representation.’’ At this LoDestro
shook his head, in disapproval of Iuzzolino’s remarks, and
the meeting went on to other areas.
Second, the record shows that some drivers leased vans
and limousines from the Respondent while others owned and
operated their own equipment. Respondent admits that many
of the vans and limousines, whether leased or owner-oper-
ated, were serviced by the Respondent’s mechanics. Re-
717CLASSIC COACH
spondent also says that it had no control over where the
owner-operators had their vehicles repaired, but that they
could come to its shop if they so choose. The record does
not reflect who paid for the mechanical services when the
owner-operators had their vehicles repaired by Respondent.
Respondent even had three mechanics that worked exclu-
sively on vans and limousines. The drivers only had to fill
out discrepancy slips in order to have all their automobile
serviced. Although it is unclear who was ultimately respon-
sible for the maintenance and repairs of the vans and lim-
ousines, Respondent certainly provided sufficient facilities to
cover such interests.
Third, the record shows that Respondent controlled the hir-
ing and firing of van and limousine drivers. For instance,
after an applicant was interviewed and subsequently hired by
Respondent, the new driver would be given a 2-day training
course by an experienced driver. Respondent’s dispatchers
were also given the authority to suspend or fire drivers. This
shows that Respondent had a disciplinary system as to van
and limousine drivers.
Although the record is inadequate as to the issue of inde-
pendent contractor/employee status of van and limousine
drivers, it is clear that Respondent exercised substantial con-
trol over the daily activities of the drivers. They were hired,
fired, supervised, and given assignments by Respondent. Fur-
thermore, Respondent had three mechanics who repaired
vans and limousines.
Based on all of the above, Respondent has not met its bur-
den of proof in claiming independent contractor status for
van and limousine drivers. As such, the drivers were employ-
ees of Respondent and not independent contractors. With re-
gard to the status of Danny Mullen, he was a supervisor of
nonbargaining unit employees of Respondent, and as such,
he should have been excluded from the bargaining unit, and
ineligible to vote in the representation election. Detroit Col-
lege of Business, supra at 321.
E. The Motion to Disqualify
Along with its posttrial brief, Respondent also filed an af-
fidavit in support of Motion to Disqualify Administrative
Law Judge seeking my removal from the case on the basis
that my conduct in presiding over the hearing created the ap-
pearance of bias against Respondent. Counsel for the General
Counsel filed a letter in opposition to the motion.
Respondent’s counsel first refers to his earlier oral motion
that I disqualify myself during the third day of hearing.
Counsel objected to my sustaining objection to his question
of a General Counsel witness on cross-examination which I
ruled exceeded the scope of the direct examination and my
refusal, in the exercise of my discretion, to permit counsel
to examine the witness as a Respondent witness at the time.
The interchange that took place with counsel and my later
ruling denying the refusal appears at Transcript 730 to 739.
In making his motion, Respondent counsel showed a signifi-
cant misunderstanding of the rules of evidence which gov-
erns the presentation of evidence in unfair labor practice pro-
ceedings and in the role of the administrative law judge in
regulating the course of the hearing, including requesting the
parties at any time during the hearing to state their respective
positions concerning any issue in the case or theory in sup-
port thereof under Section 102.35, subsections (f), (k), and
(l) of the Board’s Rules and Regulations. In particular, I
deemed it appropriate and well within the bounds of sub-
section (l) to require Respondent counsel to state his client’s
position and its knowledge of alleged discriminatee Anthony
Iuzzolino’s union activities in light of both Iuzzolino’s and
other witnesses’ testimony and, in particular, counsel’s cross-
examination of Iuzzolino which resulted in a reiteration and
reaffirmation of his direct testimony attributing such knowl-
edge to Respondent’s agents. Respondent counsel’s state-
ments that he never had a situation where he had seen an
objection beyond the scope sustained in an NLRB hearing is
extraordinary and implausible. His later statements that he
was under no obligation to tell me what his case is going
to be was both nonresponsive and evidenced a serious lack
of knowledge of the powers and responsibilities of the ad-
ministrative law judge in controlling the hearing and his re-
sponsibilities in appropriately responding. Respondent coun-
sel is also mistaken when he claims disparate treatment in
claiming I was short with delays occasioned by Respondent
counsel and representatives’ tardiness in attending the hear-
ing timely, and refused to permit Respondent Counsel to
leave the hearing room but granted such leave to counsel for
General Counsel. As is confirmed by General Counsel and
union counsels’ comments on the record and confirmed in
General Counsel’s letter, no such break was ever permitted
or sought by General Counsel. Furthermore, my comments
about Respondent’s tardiness was direct, to the point, and
nonthreatening. (Tr. 1009, 1242.) If Respondent claims any
of my remarks in this regard were made off the record, it
was incumbent on its counsel immediately to request they be
made of record and to make a timely objection and move my
disqualification, none of which was done. See Pioneer Natu-
ral Gas Co., 253 NLRB 17 fn. 2 (1980).
Although denied the opportunity to examine the govern-
ment witness, Edward LaPetina, as his own while LaPetina
was on the witness stand undergoing cross-examination, I
permitted the witness to be called as Respondent’s first wit-
ness in the presentation of its defense, over union counsel’s
objection, as soon as the General Counsel had rested his
case-in-chief, later the same day. (Tr. 747.) Thus, Respond-
ent was able to achieve its objective of examining Edward
LaPetina without any delay in the proceeding and without the
necessity of issuing him a subpoena.
My evidentiary rulings with respect to alleged discrim-
inatee Robert Molaro’s cross-examination were proper and,
in particular, sought to balance appropriately the prejudice or
harm which could result from the disclosure of names of em-
ployee union card signers against the need for the disclosure
of information in furtherance of Respondent’s rights to cross-
examine witnesses. See Committee on Masonic Homes v.
NLRB, 556 F.2d 214 (3d Cir. 1977), and NLRB v. Robbins
Tire & Rubber Co., 437 U.S. 214 (1978). That balancing
process has recently been the subject of Board scrutiny, in
National Telephone Directory Corp., Case 22–CA–19067 et
al., in which the Board by unpublished Order dated October
7, 1994, granted counsel for General Counsel’s and charging
party’s requests for special permission to appeal the adminis-
trative law judge’s ruling requiring production of all author-
ization cards or in the alternative requiring witnesses to re-
veal the identities of employees who signed authorization
cards, attended union meetings, or otherwise engaged in
union activities, and, on appeal, reversed and vacated the ad-
ministrative law judge’s rulings.
718 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Respondent counsel’s erroneous reference is to Tr. 625, where I
also requested counsel for the General Counsel to clarify the allega-
tion in par. 15 of the consolidated complaint which claims a dis-
criminatory reduction in employee Iuzzolino’s seniority.
In furtherance of this balancing process, I required both
Molaro and Iuzzolino to disclose the names of employees
they solicited and the circumstances of their solicitations and
those employees who they recalled executed union cards at
their behest. When those cards were requested by Respond-
ent they were provided for its inspection. Respondent counsel
did not request all cards solicited by Molaro. I refused to
permit Respondent counsel to receive or examine all cards
received by Local 282 or Local 804, but, I did, with the
agreement of all counsel, examine Local 282 cards in camera
and read their dates of signing into the record. (Tr. 604,
678.) Subsequent to an extended recess in the cases, which
permitted me to examine the record, and consistent with my
position on card disclosure and production, I reversed a prior
ruling and now disclosed the identity of card signers solicited
by Iuzzolino, directed the production of their cards, and per-
mitted further cross-examination of Iuzzolino with respect to
them. (Tr. 1009.)
The reference in Respondent counsel’s affidavit to my as-
sistance rendered to counsel for General Counsel refers to a
request to government counsel to inform me whether, in light
of the record evidence to date he was claiming a
discriminatorily denial of work for Iuzzolino prior to the date
of discharge alleged in the complaint. (Tr. 458–459.)5 This
request of General Counsel was made under my authority set
forth in Section 102.35(k) and (l) of the Board’s Rules and
Regulations. See also Teamsters Local 722 (Kasper Truck-
ing), 314 NLRB 1016, 1017 (1994), when the Board states:
‘‘Further, it is well settled that judge’s may examine wit-
nesses or interrupt questioning in order to clarify testimony
or develop the record. NLRB v. Overseas Motors, 818 F.2d
5l7, 520 (6th Cir. 1987); NLRB v. Top Form Mills, 789 F.2d
262, 265 (4th Cir. 1986).’’
Respondent counsel is also incorrect in attributing to union
Counsel rather than to me the evidentiary rulings appearing
at Transcript 990–991 and 995. I correct Transcript 991, lines
12 to 14, since clearly I made this ruling and not union
counsel, where name improperly appears as the speaker at
these lines. It is my ruling which appears at Transcript 995,
line 13–14. Mr. Gordon, union Counsel’s, use of the phrase
‘‘but admit it’’ at line 11, while inartful, clearly signifies he
is not objecting to my receiving the hearsay testimony, not
for its truth, but for the witnesses’ state of mind. I saw no
reason to correct his phraseology at the time, and Mr.
Gringer’s seizing on this ruling is nitpicking to an extreme
degree, as is his reference to my ruling at Transcript 998–
999 where I properly sustained an objection to a Respondent
witnesses’ description of a company rule without laying a
proper foundation for its admission.
My denial of Respondent’s motion to amend its answer
during the hearing to now deny its issuance of written warn-
ings to alleged discriminatee Molaro was well within my dis-
cretion, particularly since Respondent’s conduct in fabricat-
ing these warnings played a central role in my conclusions
regarding Respondent’s animus and discriminatory motive to-
ward Molaro.
Respondent counsel’s claim that I should have permitted
receipt into evidence of a lengthy unemployment hearing
transcript further burdening the record instead of requiring
him, as I did, to identify those portions which constituted ei-
ther admissions or prior inconsistent statements of the wit-
ness, is wrong as a matter of law and illustrates that he is
seeking to create a claim of prejudice and bias out of whole
cloth, out of what in essence are proper evidentiary rulings
which somehow offended Mr. Gringer or his client’s sen-
sibilities.
I will not dignify a response to other unsubstantiated
claims of a scurrilous nature, but refer to counsel for the
General Counsel’s response to one of them. My participation
in the prior proceeding alluded to by Respondent counsel,
Long Island Transport, Case 29–CA–14285, involving a Sec-
tion 8(a)(3) discharge, was settled by way of an out-of-Board
adjustment in May 1990, and a closing order issued on June
8, 1990, thereby avoiding litigation of Respondent’s general
defense that its limousine and van drivers were independent
contractors. Mr. Schoolman, owner and president, was rep-
resented by counsel and all settlement discussions were held
jointly with them, General Counsel, and the alleged
discriminatee. The adjustment, resulting in the payment of a
$6000 amount to the Charging Party and his withdrawal of
the charge, was voluntary and freely entered by all parties,
with the approval of counsel for the General Counsel, and
effectuated the purposes of the Act. The wisdom of Mr.
Schoolman reserving that defense has been established in this
proceeding where the weight of the available evidence shows
the probable legal inadequacy of Respondent’s claim that its
limousine and van drivers are not statutory employees.
Respondent counsel’s reliance on the citation of cases ap-
pearing at page 9 of his affidavit is misplaced as these cases
are clearly distinguishable, each involving administrative law
judge conduct significantly different in kind, showing a pre-
judgment and bias toward one of the parties to the proceed-
ing before him, none of which appears on this record.
I categorically reject Respondent counsel’s assertions that
I exhibited an appearance of bias or prejudice toward him or
his client, and firmly deny its motion.
CONCLUSIONS OF LAW
1. Respondent Schoolman Transportation System, Inc.,
d/b/a Classic Coach, is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. Local 804, International Brotherhood of Teamsters,
AFL–CIO, is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. By interrogating its employees concerning their mem-
bership in, activities on behalf of, and sympathy for, the
Union, warning and directing employees to cease engaging
in activities on behalf of the Union, threatening employees
that they would be discharged because of their support for
the Union, soliciting grievances from employees and promis-
ing to resolve them if said employees rejected the Union,
creating the impression that their union activities are being
kept under surveillance, directing its employees to tell other
employees to cease their union activities, threatening its em-
ployees that a strike would be inevitable if they selected the
Union as their collective-bargaining representative, and by
offering its employees unspecified financial benefits as an in-
ducement to vote against representation by the Union at an
719CLASSIC COACH
6 Under New Horizons, interest is computed at the ‘‘short-term
Federal rate’’ for the underpayment of taxes as set out in the 1986
amendment to 26 U.S.C. § 6621.
7 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
8 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
National 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.’’
election to be conducted by the National Labor Relations
Board, the Respondent has interfered with, restrained, and
coerced its employees in the exercise of their Section 7 rights
in violation of Section 8(a)(1) of the Act.
4. By issuing written warnings to, and discharging, em-
ployee Robert Molaro and by reducing the seniority of, and
discharging, employee Anthony Iuzzolina because of their
membership in and activities on behalf of the Union, the Re-
spondent has been discriminating in regard to the hire or ten-
ure or terms and conditions of employment of its employees,
thereby discouraging membership in a labor organization in
violation of Section 8(a)(3) and (1) of the Act.
THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, in violation of Section 8(a)(1) and (3)
of the Act, I shall recommend that it cease and desist there-
from and take certain affirmative actions which are necessary
to effectuate the policies of the Act.
I shall recommend that Respondent offer Robert Molaro
and Anthony Iuzzolino reinstatement to their former posi-
tions or, if no longer available, to substantially equivalent
positions, including restoration of Iuzzolino’s seniority date
of June 24, 1991, without prejudice to their seniority and
other rights and privileges, and make them whole for any
loss of earnings and other benefits they may have suffered
as the result of Respondent’s unlawful discriminations
against them. Such amounts shall be computed in the manner
prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950),
and shall be reduced by net interim earnings, with interest
computed in accordance with New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).6 I shall also recommend
that Respondent expunge from its files any references to
Molaro’s written warnings, Iuzzolino’s reduction of seniority,
and to their unlawful discharges, and notify the employees
in writing that this has been done and that these acts will not
be used against them in any way.
Having concluded that the challenge to Robert Molaro’s
ballot be set aside and the challenge to Dan Mullen’s ballot
be sustained, I shall recommend that Molaro’s ballot be
opened, a revised tally of ballots be issued, and if, as a re-
sult, the Union should have won the election, a certification
of representative issue to the Union. If the Petitioner should
lose the election based on a revised tally of ballots, I rec-
ommend that the election be set aside and a rerun election
be ordered.
On the findings of fact and conclusions of law, and on the
entire record, I issue the following recommended7
ORDER
The Respondent, Schoolman Transportation System, Inc.,
d/b/a Classic Coach, Bohemia, New York, its officers,
agents, and assigns, shall
1. Cease and desist from
(a) Interrogating its employees concerning their member-
ship in, activities on behalf of, and sympathy for, Local 804,
International Brotherhood of Teamsters, AFL–CIO, or any
other labor organization, warning and directing employees to
cease engaging in such membership and activities, threaten-
ing employees that they would be discharged because of their
support for the Union, soliciting grievances from employees
and promising to resolve them if said employees rejected the
Union, creating the impression that their union activities are
being kept under surveillance, directing its employees to tell
other employees to cease their union activities, threatening its
employees that a strike would be inevitable if they selected
the Union as their collective-bargaining representative, and
offering its employees unspecified financial benefits as an in-
ducement to vote against the Union at an election to be con-
ducted by the National Labor Relations Board.
(b) Discouraging membership in Local 804, International
Brotherhood of Teamsters, AFL–CIO, or any other labor or-
ganization, by issuing written warnings, reducing seniority,
discharging or otherwise discriminating against its employees
in regard to their hire or tenure of employment or any term
or condition of employment.
(c) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Restore Anthony Iuzzolino’s original seniority date and
offer Robert Molaro and Anthony Iuzzolino immediate and
full reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privileges
previously enjoyed, and make them whole for any loss of
earnings and other benefits suffered as a result of the dis-
crimination against them, in the manner set forth in the rem-
edy section of the decision.
(b) Remove from its files any reference to the unlawful
written warnings to Robert Molaro, the unlawful reduction in
Anthony Iuzzolino’s seniority, and the unlawful discharges of
both employees and notify them in writing that this has been
done and that these actions will not be used against them in
any way.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, 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.
(d) Post at its Bohemia, New York facilities, copies of the
attached notice marked ‘‘Appendix.’’8 Copies of the notice,
on forms provided by the Regional Director for Region 29,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees, are
customarily posted. Reasonable steps shall be taken by the
720 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED in Case 29–RC–8087, that the
challenge to the ballot of Dan Mullen be sustained and that
the challenge to the ballot of Robert Molaro be overruled and
that such ballot be opened and tallied with the count of other
ballots already made and that a revised tally of ballots be
issued and served on the parties, and that if the resulting
votes for representation by the Union constitute the majority
of the ballots cast in the February 9 and 11, 1993 election,
that the appropriate certification of exclusive collective-bar-
gaining representative be issued. If the ultimate tally of bal-
lots is not to such effect, Objections 2, 4, and 6 will be sus-
tained, the election held on February 9 and 11, 1993, will
be set aside, and a rerun election will be ordered.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated 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 representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT interrogate our employees concerning their
membership in, activities on behalf of, and sympathies for,
Local 804, International Brotherhood of Teamsters, AFL–
CIO, or any other labor organization, warn and direct em-
ployees to cease engaging in such membership and activities,
threaten employees that they would be discharged because of
their support for the Union, solicit grievances from employ-
ees and promise to resolve them if said employees rejected
the Union, create the impression that their union activities
are being kept under surveillance, direct our employees to
tell other employees to cease their union activities, threaten
our employees that a strike would be inevitable if they se-
lected the Union as their collective-bargaining representative,
and offer our employees unspecified financial benefits as an
inducement to vote against the Union at an election to be
conducted by the National Labor Relations Board.
WE WILL NOT discourage membership in Local 804, Inter-
national Brotherhood of Teamsters, AFL–CIO, or any other
labor organization, by issuing written warnings, reducing se-
niority, discharging or otherwise discriminating against our
employees in regard to their hire or tenure of employment
or any term or condition of employment.
WE WILL NOT in any like or related manner, interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL reinstate Anthony Iuzzolino’s original seniority
date and WE WILL offer Robert Molaro and Anthony
Iuzzolino immediate and full reinstatement to their former
jobs or, if those jobs no longer exist, to substantially equiva-
lent positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed, and make them
whole for any loss of earnings and other benefits suffered as
a result of the discrimination against them, with interest.
WE WILL remove from our files any reference to the un-
lawful warnings, reduction in seniority and discharges, and
notify Robert Molaro and Anthony Iuzzolino in writing that
this has been done and that this action will not be used
against them in any way.
SCHOOLMAN TRANSPORTATION SYSTEM, INC.
D/B/A CLASSIC COACH