Columbus Transit LLC

National Labor Relations Board - Board Decisions

Dec 20, 2011

357 N.L.R.B. 1717 (N.L.R.B. 2011)

COLUMBUS TRANSIT, LLC
357 NLRB No. 146
1717
Columbus Transit, LLC and Transport Workers Un-
ion of Greater New York, Local 100, AFL–CIO,
Petitioner and Local 713, United Brotherhood of
Trade Unions, IUJAT, Intervenor

Columbus Transit, LLC and Local 713, United
Brotherhood of Trade Unions, IUJAT and
Transport Workers Union of Greater New
York, Local 100, AFL–CIO. Cases 02–CA–
039193 and 02–RC–023351
December 21, 2011
DECISION, ORDER, AND CERTIFICATION
OF REPRESENTATIVE
BY CHAIRMAN PEARCE AND MEMBERS BECKER
AND HAYES
On October 4, 2010, Administrative Law Judge Ray-
mond P. Green issued the attached decision in this con-
solidated unfair labor practice and representation pro-
ceeding. The Respondent and Intervenor Local 713 filed
exceptions and supporting briefs, Petitioner Local 100
filed an answering brief, and the Respondent filed a brief
partially opposing the Intervenor’s exceptions.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions
only to the extent consistent with this Decision, Order,
and Certification of Representative.
The Refusal to Bargain
The judge found that the Respondent did not violate
Section 8(a)(5) and (1) of the Act by its refusal to bar-
gain with the Intervenor. The Respondent voluntarily
recognized the Intervenor on November 10, 2008, and a
week later, posted a notice under Dana Corp., 351
NLRB 434 (2007), notifying employees that it had vol-
untarily recognized the Intervenor and that they had 45
days to either seek alternative union representation or no
representation. The Petitioner filed a representation peti-
tion on December 22, 2008.2 In a February 24, 2009
letter, the Intervenor requested bargaining with the Re-
spondent. The Respondent declined to bargain, notifying

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 The Region found that the petition had been timely filed under Da-
na Corp., and the judge determined that the Region properly ordered
the election. The Board denied the Intervenor’s Request for Review of
that decision by unpublished order dated May 28, 2009.
the Intervenor by letter dated March 4, 2009, 2 days be-
fore the representation election in this case.
On August 26, 2011, the Board issued its decision in
Lamons Gasket Co., 357 NLRB No. 72 (2011), overrul-
ing Dana Corp., supra, and thus eliminating the 45-day
“window period” for filing a representation petition or a
decertification petition. The Board stated in Lamons
Gasket that its decision would apply retroactively to all
pending cases, “except those in which an election was
held and the ballots have been opened and counted, con-
sistent with the Board’s established approach in repre-
sentation proceedings.” Lamons Gasket, supra, slip op.
at 10. That exception applies here, as the election was
held on March 6, 2009, and the ballots were tallied on
June 5, 2009, well before issuance of Lamons Gasket.
We therefore evaluate the facts of this case under the rule
in Dana Corp., on which the Region and the judge also
relied.3
Applying Dana Corp., we disagree with the judge’s
conclusion that the Respondent did not violate Section
8(a)(5) and (1) by refusing to bargain with the Intervenor
after its voluntary recognition. The judge found that a
reasonable period of time for bargaining had passed be-
tween the voluntary recognition of the Intervenor and the
Intervenor’s request for bargaining. The judge explained
that the Intervenor “sat on its hands” by delaying its re-
quest until after the Petitioner filed its petition and for a
period of almost 4 months following recognition.
Dana Corp., however, expressly provides that an em-
ployer’s obligation to bargain with the union attaches
immediately upon voluntary recognition and continues
even if a decertification or representation petition is filed

3 The results of this election do not, in Chairman Pearce’s and Mem-
ber Becker’s view, undercut the validity of Lamons Gasket. As the
majority in Lamons Gasket explained, employees’ rejection of a volun-
tarily recognized union in a small percentage of cases does not invali-
date their earlier support upon which recognition was based. Here,
employees changed their minds, but as Lamons Gasket explained, there
is no reason to believe they would not have done so (and that other
employees will not do so in a small percentage of cases) even if recog-
nition had followed a Board-supervised election.
Member Hayes agrees with his colleagues that the petition was
properly processed under the procedures outlined in Dana Corp. He
finds, for the reasons explained in his dissent in Lamons Gasket—and
as this case starkly demonstrates—that Lamons Gasket was wrongly
decided and that Dana Corp. should not have been overruled. In the
instant case, the unit employees exercised their Dana Corp. right to
vote in a secret-ballot election and soundly rejected the union voluntari-
ly recognized by the Respondent in favor of the Petitioner. In Member
Hayes’ view, that carefully considered and confidential expression of
choice is, as both the Board and courts have noted, far more likely to
express an employee’s actual sentiment than a publicly solicited card.
Accordingly, Member Hayes finds that the Petitioner should be certi-
fied.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1718
during the window period.4 Here, there is no evidence
that the Intervenor waived the Respondent’s bargaining
obligation.
Moreover, contrary to the judge, we find that the Inter-
venor’s 4-month delay in requesting bargaining is rea-
sonable under the uncommon circumstances of this case.
In assessing what constitutes a “reasonable time,” the
Board does not rely strictly on the passage of time or the
number of meetings between the parties, but instead
looks at what transpired during that period. See Lee
Lumber & Building Material Corp., 322 NLRB 175, 179
(1996), enfd. in relevant part 117 F.3d 1454, 1459 (D.C.
Cir. 1997). Here, the Intervenor and the Respondent
were faced with the unusual circumstance (permitted by
Dana Corp.) of having a rival union file a representation
petition shortly after voluntary recognition. Thus, during
the period preceding the Intervenor’s request to bargain,
the parties were also involved in organizing campaigns
and preelection proceedings, including a hearing, in addi-
tion to preparing to bargain for an initial contract. Con-
trary to our colleague’s assertion, that the Intervenor re-
quested bargaining approximately 10 days before the
election does not render that request unreasonable.
In finding a period just shy of 4 months to be reasona-
ble, we acknowledge the “Catch-22” position that volun-
tarily recognized unions faced under Dana Corp. As the
dissent in that case explained, the rule in Dana Corp.
placed a union in “limbo” for at least the first 45 days of
the bargaining relationship, and employers had little in-
centive to devote time to bargaining during this period.
Dana Corp., 351 NLRB at 447. Thus, the Intervenor’s
delay in requesting bargaining may well have reflected
its anticipation that the Petitioner—which was actively
attempting to organize employees at the time the Re-
spondent voluntarily recognized the Intervenor—would
file a petition. Given these circumstances, we find that
the Intervenor’s request to bargain was made within a
reasonable period of time and that the Respondent’s re-
fusal to bargain with the Intervenor violated Section
8(a)(5) and (1) of the Act.5

4 As stated in Dana Corp., “The employer’s obligation to bargain
with the union attaches immediately. For instance, during this 45-day
period, the union can begin its representation of employees, its pro-
cessing of their grievances, and its bargaining with the employer for a
first contract.” Supra at 442.
5 Contrary to his colleagues, Member Hayes agrees with the judge
that the Respondent did not violate the Act by refusing the Intervenor’s
belated bargaining demand, which came essentially on the eve of the
scheduled election. Like the judge, he agrees that the Intervenor “sat
on its hands,” and failed to request bargaining within a reasonable
period. The fact that all parties were involved with other matters hardly
excuses a failure to make a simple request; no “Catch-22” exists as to
that. Member Hayes therefore finds that with the election imminent,
the Respondent reasonably declined the Intervenor’s last minute request
The Objections
The revised tally of ballots from the March 6 election
showed 24 votes for Petitioner Local 100, 5 votes for
Intervenor Local 713, 9 votes for no representation, and
9 challenged ballots.6 The Respondent and the Interve-
nor filed timely objections to the election. The judge
overruled the Respondent’s and Intervenor’s election
objections, finding they lacked merit. For the reasons set
forth by the judge, and as further stated below, we agree.7
In its objections, the Intervenor contends that the Re-
spondent’s refusal to bargain with it warrants overturning
the election. We disagree. Despite the general policy of
directing a new election whenever an unfair labor prac-
tice occurs during the critical period, the Board does not
set the election aside “where it is virtually impossible to
conclude that the misconduct could have affected the
election results.” Clark Equipment Co., 278 NLRB 498,
505 (1986), overruled in part on other grounds in Nickles
Bakery of Indiana, 296 NLRB 927 (1989); see also Bon
Appétit Mgmt. Co., 334 NLRB 1042, 1044 (2001). In
assessing unfair labor practices during the critical period,
the Board weighs a number of factors to determine if the
violations could have affected the outcome, such as the
number of violations, their severity, the extent of their
dissemination, the number of employees affected, the
size of the bargaining unit, the closeness of the election,
and the violations’ proximity to the election. Bon Appétit
Mgmt. Co., supra at 1044.8

to bargain until after the election resolved who the employees’ bargain-
ing representative actually would be.
6 The election was conducted in a unit of the Respondent’s drivers
pursuant to a February 5, 2009 Decision and Direction of Election.
7 The Respondent’s Objection 4 contends that the Regional Direc-
tor’s Decision and Direction of Election precluded a fair and valid
election by directing that the Petitioner could be certified if it won the
election but, if the Intervenor won, its certification would be held in
abeyance pending the resolution of an 8(a)(2) charge (which was later
withdrawn) alleging that the Respondent had illegally assisted the In-
tervenor. We agree with the judge that the above direction does not
constitute grounds for overturning the election. In doing so, we do not
pass on the judge’s finding that the direction “reflects the legal proce-
dure governing the case at the time the decision was issued.” Rather,
we find that the Regional Director’s “conditional” certification had no
effect on the employees’ choice of representative because there is no
credited evidence that unit employees were aware of the direction when
they voted.
8 Compare Longview Fibre Paper Packaging, Inc., 356 NLRB 796,
796 (2011) (numerous 8(a)(1) violations, including threats of loss of
benefits, warranted new election); Borun Bros., Inc., 257 NLRB 156,
156 fn. 2 (1981) (directing a new election where the employer violated
Sec. 8(a)(1) by, inter alia, maintaining an unlawful no-solicitation rule
and threatening, interrogating, and polling employees); Han-Dee Pak,
Inc., 249 NLRB 725, 735 (1980) (numerous 8(a)(1) violations, includ-
ing interrogating employees and threatening them with plant closure
and discharge, warranted new election if union did not receive a majori-
ty of votes cast); with Coca-Cola Bottling Co., 232 NLRB 717, 718
(1977) (declining to set aside an election where an 8(a)(1) violation
COLUMBUS TRANSIT, LLC 1719
Considering these factors, we find that it is virtually
impossible to conclude that the Respondent’s refusal to
bargain in this case could have affected the result of the
election.9 As noted above, the Petitioner won the elec-
tion by a considerable margin, receiving 24 votes com-
pared to 5 votes in favor of the Intervenor. Further, it is
unlikely that the Intervenor had been deprived of a pos-
sible campaign platform, as it made its request to bargain
approximately a week before the election, the Respond-
ent’s refusal occurred only 2 days before the election,
and there is also no evidence that employees were aware
of the Intervenor’s request or the Respondent’s refusal.
Thus, we find that the Respondent’s unlawful conduct
could have had no impact on the election results. Ac-
cordingly, we overrule the objection.
CONCLUSIONS OF LAW
1. Respondent Columbus Transit, LLC is an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. Intervenor Local 713, United Brotherhood of Trade
Unions, IUJAT and Petitioner Transport Workers Union
of Greater New York, Local 100, AFL–CIO are labor
organizations within the meaning of Section 2(5) of the
Act.
3. The Respondent, by failing and refusing to recog-
nize and bargain with the Intervenor as the exclusive
representative of bargaining unit employees since March
4, 2009, engaged in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act.
4. The Intervenor’s and the Respondent’s objections
to the election have no merit.
REMEDY
Having found that the Respondent has violated Section
8(a)(5) and (1) of the Act, we shall order the Respondent
to cease and desist from engaging in such conduct. Be-

affected only 2 employees out of a unit of 106 employees); Recycle
America, 310 NLRB 629, 629 (1993) (declining to set aside an election
where employer interrogation and solicitation of grievances affected
only one employee in 45-employee unit and occurred 1 month before
election); Empresas Inabon, Inc., 309 NLRB 291, 293 (1992), petition
for review dismissed sub nom. Union de la Construccion de Concreto y
Equipo Pesado v. NLRB, 10 F.3d 14 (1st Cir. 1993) (declining to set
aside an election despite a meritorious 8(a)(5) charge, because the
affected union requested to proceed to the election, participated in the
representation proceedings, and then lost by a significant margin de-
spite employees knowing about the refusal to bargain).
9 Even assuming arguendo that the Respondent’s election eve refusal
to bargain violated the Act, Member Hayes agrees with his colleagues
that the refusal did not affect the election results and that the objection
should be overruled under either the “virtually impossible” standard,
which he does not endorse, or that articulated by the majority in Safe-
way, Inc., 338 NLRB 525, 526 fn. 3 (2002) (finding that each case must
be evaluated on its particular facts to determine whether, under all the
circumstances, the conduct was such as to preclude a fair election).
cause the Intervenor is no longer the exclusive bargain-
ing representative of the unit employees, the remedy
shall not include an affirmative bargaining order. See
Empresas Inabon, Inc., supra, 309 NLRB at 293.
ORDER
The National Labor Relations Board orders that the
Respondent, Columbus Transit, LLC, Mount Vernon,
New York, its officers, agents, successors, and assigns
shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with
the exclusive collective-bargaining representative of the
employees in the bargaining unit.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at
its Mount Vernon, New York facility, copies of the at-
tached notice marked “Appendix.”10 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 2, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. In addition to physical posting of
paper notices, notices shall be distributed electronically,
such as by email, posting on an intranet or an internet
site, and/or other electronic means, if the Respondent
customarily communicates with its employees by such
means.11 Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since March 4, 2009.
(b) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-

10 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
11 For the reasons stated in his dissenting opinion in J. Picini Floor-
ing, 356 NLRB 11 (2010), Member Hayes would not require electronic
distribution of the notice.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1720
testing to the steps that the Respondent has taken to
comply.
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots have
been cast for Transport Workers Union of Greater New
York, Local 100, AFL–CIO and that it is the exclusive
collective-bargaining representative of the employees in
the following appropriate unit:

Included: All full-time and regular part-time drivers
employed at the Employer’s facility at 701 So. Colum-
bus Avenue, Mount Vernon, NY.

Excluded: All other employees, and guards, profes-
sional employees and supervisors as defined in the Act.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT fail and refuse to recognize and bargain
with the exclusive collective-bargaining representative of
the employees in the bargaining unit.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.

COLUMBUS TRANSIT, LLC

Robert Guerra, Esq., for the General Counsel.
Stuart Weinberger, Esq., for the Employer.
Polly Halfkenny, Esq., for the Petitioner.
Bryan McCarthy, Esq., for the Intervenor.
DECISION
STATEMENT OF CASE
RAYMOND P. GREEN, Administrative Law Judge. I heard this
case1 in New York City, New York, on August 24, 2010.
The petition in Case 02–RC–023351 was filed on December
22, 2008, by Transport Workers Union of Greater New York,
Local 100, AFL–CIO (Local 100). At the same time, Local
100 filed an unfair labor practice charge in Case 02–CA–
039377, alleging that the Employer had unlawfully recognized
Local 713, United Brotherhood of Trade Unions, IUJAT, herein
called Local 713.
Pursuant to a Decision and Direction of Election issued by
the Regional Director on February 5, 2009, a secret ballot elec-
tion was held on March 6, 2009. In addition to Local 100 and
the employer, Local 713 also participated in the election as the
Intervenor.
The unit of employees that voted in the election was as fol-
lows:

Included: All full-time and regular part-time drivers em-
ployed at the Employer’s facility at 701 So. Columbus Ave-
nue, Mount Vernon, New York.
Excluded: All other employees, and guards, professional em-
ployees and supervisors as defined in the Act.

Because the Board had not yet ruled on the Employer’s re-
quest for review of the Regional Director’s Decision and Direc-
tion of Election, the ballots were impounded.
On March 12, 2009, Local 100 withdrew its unfair labor
practice charge and on March 20, the Director issued a Sup-
plemental Decision and Order directing that the ballots be
opened and counted. The tally of ballots showed that of about
55 eligible voters, 24 cast ballots for Local 100, 5 cast votes for
Local 713, and 9 cast votes against any union representation.
Both the Employer and Local 713 filed timely objections to
the election and these will be discussed below.
The charge in the consolidated unfair labor practice case,
Case 02–CA–039193 was filed by Local 713 on March 10,
2009, and the complaint based on this charge was issued by the
Regional Director on May 29, 2009. This alleged that the Em-
ployer has since March 4, 2009, refused to bargain with that
Union as the exclusive bargaining representative in the above
described unit.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed, I
make the following
Findings and Conclusions
A. Procedural History
The evidence in this case shows that both Local 100 and Lo-
cal 713 began organizing the employees of the Company at its
Mount Vernon location in or about September 2008. In this

1 The caption is hereby amended to reflect that at the hearing I per-
mitted Transport Workers Union of Greater New York, Local 100 to
intervene in the unfair labor practice case, it already being a party to the
related and consolidated representation case.
COLUMBUS TRANSIT, LLC 1721
regard, Local 100 represents certain other employee of the
Company at a different location and learned about Local 713’s
organizing efforts through people at its represented facility.
In connection with the unfair labor practice case, it was stip-
ulated that on or about November 10, 2008, the employer vol-
untarily recognized Local 713 as the exclusive bargaining agent
of the company’s drivers at the location in question. It was also
stipulated that by letter dated February 24, 2009, Local 713
notified the employer of its desire to meet and negotiate for a
collective-bargaining agreement and that by letter dated March
4, 2009, the employer stated that it was declining to bargain.
That is the sum and substance of the General Counsel’s unfair
labor practice proof and no other evidence was offered by any
of the other parties.
There are, however, a few things worth noting. For one
thing, Local 100 had filed at one point, an unfair labor practice
charge alleging that the Employer’s recognition of Local 713
was illegal under Section 8(a)(1) and (2) of the Act. That
charge was later withdrawn and so there is no present conten-
tion in this case that the recognition of Local 713 was illegal
because that union did not represent, at the time of recognition,
an uncoerced majority of the employees in the bargaining unit.
Nor is there any current allegation that the recognition of Local
713 was tainted by any assistance or other improper conduct by
the employer. So, for purposes of this case, I must conclude
that the recognition accorded to Local 713 was legally granted
and therefore, under Board law, the employer had an obligation
to bargain with that union for a “reasonable period of time.”
Royal Coach Lines, 282 NLRB 1037, 1038 (1987).
The second thing worth noting is that notwithstanding the
fact that recognition was granted on or about November 10,
2008, it was not until after Local 100 filed its representation
petition in the same bargaining unit that Local 713 asked the
company to bargain. Thus, whatever a reasonable period of
time might be, Local 713 sat on its hands for almost 4 months
and did nothing to commence negotiations after its recogni-
tion.2
In the meantime, Local 100 filed its petition for an election
on December 22, 2008, and a hearing was held on that petition.
At the hearing, Local 713 intervened and contended that its
recognition agreement dated November 10, 2008 should act as
a bar to an election. Moreover, the employer contended that the
election process should be blocked because there was then
pending an unfair labor practice charge filed by Local 100
which alleged, inter alia, that the recognition agreement was
unlawful under Section 8(a)(2) of the Act. It argued that hold-
ing an election would only be proper if Local 100 withdrew or
waived its 8(a)(2) allegations irrespective of the outcome of the
election.

2 I note that there was no evidence presented to show that at any time
after the initial grant of recognition, Local 713 representatives met with
or communicated with employees as to the kinds of negotiations. There
was no evidence that any representatives met with employees to discuss
their issues, problems, or grievances. Indeed there was no evidence to
show that any representatives of Local 713 even notified the employees
in the unit that it had been recognized by the employer as the bargain-
ing representative.
On February 5, 2009, the Regional Director issued a Deci-
sion and Direction of Election. In her decision, the Regional
Director concluded that in accordance with Dana Corp., 351
NLRB 434 (2007), Local 100’s election petition was timely
filed and that an election should be held. In pertinent part,
Dana held that where an employer voluntarily recognizes a
union, it must notify the employees of the recognition and noti-
fy them that they have 45 days to either seek alternative union
representation or no representation. In ordering that an election
should be held, the Regional Director stated that she did so
“without prejudice and shall expressly condition any certifica-
tion resulting from such election with respect to the status of
the intervenor on any subsequent determinations made in the
pending unfair labor practice case and shall take such action as
may be deemed necessary to effectuate the policies of the act
with respect thereto.”
On March 6, 2009, an election was held but the ballots were
impounded because the Board had not yet ruled on the Em-
ployer’s request for review.
On March 20, the Regional Director issued a Supplemental
Decision directing that the ballots be opened and counted. She
held, inter alia, that the withdrawal by Local 100 of its unfair
labor practice charge rendered moot any question regarding the
potential taint from the alleged 8(a)(2) conduct and the previous
Direction of Election where she stated that a certification that
would issue to Local 713, in the event it won the election,
would be held in abeyance pending completion of the alleged
8(a)(2) unfair labor practice charge.
On April 8, 2009, the Employer filed a request for review of
the Regional Director’s March 20 Supplemental Decision.
On May 28, 2009, the Board issued an Order rejecting the
requests for review and allowed the ballots to be counted.
However, at that time there were only two members on the
Board and the Employer contends that this Order was without
statutory authority pursuant to the Supreme Court’s decision in
New Process Steel, LP v. NLRB. I do note, however that unlike
the case before the Supreme Court which involved a final order
in an unfair labor practice case, an order rejecting a request for
review is not a final order. Moreover, the granting of a request
for review in a representation case is purely a matter of discre-
tion by the Board.3
On June 5, 2009, the ballots were counted and an initial tally
of ballots was served on the parties to the election.
On June 10, 2009, the Regional Director approved a Stipula-
tion regarding three of the challenged ballots and it was agreed
these individuals were not eligible voters.4 Accordingly, the
challenges were no longer determinative of the outcome of the
election and the Regional Director issued a revised tally of
ballots pursuant to which Local 100 received a majority of the
valid votes counted.
On June 10, 2009, the Intervenor, Local 713, filed Objec-
tions to the Election. In substance Local 713 alleged that the

3 It is noted that on September 15, 2010, a three-member Board is-
sued an Order denying the Employer’s requests for review without
prejudice to the employer right to raise its contentions in the objections
case.
4 These were Nelson Navarro, Santos Poggi, and Augustin Massallo.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1722
Employer interfered with the election by (a) refusing to bargain
with it as alleged in the complaint issued in Case 20–CA–
39193; and (b) that the Regional Director made a number of
rulings in the representation case that were either incorrect or
undermined Local 713 in the eyes of prospective voters. In this
regard, Local 713 alleged that the Regional Director erred by
issuing a Decision and Direction of Election notwithstanding
the “recognition bar” issue and by failing to require the Peti-
tioner to agree to waive any contention that a certification
should not be granted to Local 713 in the event that the Inter-
venor won the election. Local 713 alleged that the wording of
the original Decision and Direction of Election indicated a
preference for Local 100 by stating that if Local won the elec-
tion, it would be certified but that if Local 713 won the elec-
tion, any certification would be held in abeyance pending the
outcome of an 8(a)(2) charge. Further, Local 713 contends that
the Regional Director should not have gone forward with the
election in the face of the unresolved outstanding unfair labor
practice complaint filed on its behalf in Case 2–CA–39193.
(Alleging that the Employer refused to bargain with Local 713
during the period after it received voluntary recognition).
On June 10, 2009, the Employer also filed Objections to the
Election. These raised essentially the same issues as raised by
Local 173. However, the Employer additionally asserted that
(a) Local 100 promised and gave benefits to employees includ-
ing promising to obtain jobs for them; and (b) Local 100 intim-
idated, restrained, and coerced employees by photographing,
recording, and taking videos of them. Finally, the Employer
contends that the Board had no jurisdiction to issue the May 28,
2009 Order denying a request for review of the Regional Direc-
tor’s Supplemental Decision directing that the ballots be
opened and counted since there was no quorum on the Board at
the time.
B. The Alleged Promise of Benefits by Local 100
In support of its Objections, the Employer offered the testi-
mony of Willie Colon, who during the election campaign was
employed by Local 100 and was one of a crew of four organiz-
ers for that union. It is noted that at some point after the elec-
tion, Colon was discharged by Local 100 and became an em-
ployee of Local 713. He is, to my mind, an interested witness
with an ax to grind against Local 100.
Colon testified that during the campaign, he told employees
on various occasions that if they became members of Local 100
they would get preference for a jobs program that might be set
up by the Metropolitan Transit Authority in conjunction with
that Union. No employees testified about this alleged offer of
benefits.
Dylan Valle, a representative of Local 100 testified that a
company called American Transit whose employees were rep-
resented by Local 100 lost its contract with the MTA and that
because so many drivers had been displaced, the Union and the
MTA talked about the possibility of setting up a pilot program
pursuant to which a depot would be opened in Greenpoint and
where the drivers would be directly employed by the MTA.
According to Valle, there were about seven drivers of Colum-
bus Transit who originally came from American Transit and he
testified that at some meetings, these former American Transit
employees asked about the pilot program. He states that he
explained that if the program was agreed to by the MTA and
Local 100, the former American Transit drivers would get pref-
erential treatment. Valle credibly denied that either he or any
other representatives from Local 100 ever told employees that
if they joined Local 100 they would be given preferential hiring
opportunities. I note that this program was never implemented.
No employees testified about the alleged promise and there
is nothing in Local 100’s campaign literature that could be
construed as containing such a promise. In light of the above,
and based on demeanor considerations, I am going to credit the
testimony of Valle and recommend that this Objection be dis-
missed.
C. The Alleged Surveillance by Local 100
Colon testified that on the day of the election, he was outside
the facility in the early morning and used his cell phone to take
pictures of employees as they went to work. He testified that
he was about 100 feet away and across the street from the en-
trance. Colon also testified that on other unspecified occasions
during the election campaign, he used his cell phone and a
camera to take pictures of employees. No employees were
presented to corroborate this testimony.
Valle testified that on the day of the election, he, Colon and
two other organizers together came to the employer’s premises
for the preelection meeting. He testified that when the election
was about to begin, all of the organizers, including Colon, stood
outside the facility. He testified that although Colon was near
to him, he never saw Colon take any pictures.
I do not credit Colon’s testimony in general. And in the ab-
sence of any employee corroboration, I do not credit his testi-
mony about taking photographs, either on the day of the elec-
tion or on any other day.5 I therefore shall overrule this objec-
tion.6
D. The Recognition Bar Contention and Related Claims
That the Election Should Not Have Been Held Because of
an Unresolved 8(a)(2) Unfair Labor Practice Charge
As noted above, the Employer and Local 713 contend that
the election should not have been held because the employer
had lawfully recognized Local 713. They contend that the
Board should overrule retroactively Dana Corp., 351 NLRB
434 (2007), and that the election should be set aside even
though Local 100 obtained the votes of a majority of the em-
ployees. In this case, having overruled the other objections
described above, there is no reason to doubt that a majority of
the eligible employees voted to be represented by Local 100 in
an election that was untainted by any other coercive conduct.

5 Even assuming that Colon used his cell phone to take photographs,
that would not be readily apparent to employees if they were 100 feet
away and across the street. From the distance described, I doubt that
any employee would have noticed that Colon was taking a picture and
therefore would not be intimidated by such an action.
6 The Employer’s objections included allegations that Local 100
agents videotaped employees and that they intimidated, restrained, and
coerced employees by trespassing and related conduct. No evidence
was presented to support these allegations and they are therefore found
to be without merit.
COLUMBUS TRANSIT, LLC 1723
The argument of the Employer and Local 713 boils down to a
contention that in these circumstances, the employees’ choice
manifested in a secret ballot election, is simply not relevant.
In this case, the Decision and Direction of Election was is-
sued under the rationale of Dana and that is still the current
law. It is not up to me to overrule the Board on this or any
other policy or legal issue. If the Board decides to change its
policy on the subject of recognition bars, that is a matter for the
Board and not for me. I therefore shall overrule this objection.
The Employer also contends that the election should be set
aside because in the Regional Director’s Decision and Direc-
tion of Election, she stated that Local 100 could be certified if it
won the election but that if the election was won by Local 713,
then a certification would be held in abeyance pending the reso-
lution of an 8(a)(2) charge alleging that the Employer had ille-
gally assisted Local 713.
This statement in the Regional Director’s Decision accurate-
ly reflects the legal procedure governing the case at the time
that the decision was issued. Therefore, I see no basis for con-
cluding that such a statement can be grounds for setting aside
an election. I therefore conclude that this allegation has no
merit and is not a basis for setting aside the election.
Finally, the Employer contends (in a number of different
formulations), that the election should not have been conducted
because at the time it was held, there was an unresolved and
still pending unfair labor practice charge and that Local 100
refused to execute a waiver to filing objections based on evi-
dence supporting that charge. This too, as described by the
Director in her Decision and Direction of Election, is a proce-
dural question inextricably connected to the Dana rationale. As
Dana is the current law, it is my opinion that this contention
should be addressed to the Board and not to me.7 I therefore
conclude that this allegation cannot be the basis for setting
aside the allegation.
Parenthetically, I do not comprehend why the failure of the
agency to first resolve a somewhat related unfair labor practice
charge (alleging that Local 713 was illegally assisted in obtain-
ing recognition) would, by itself, have any possible impact on
the potential electorate. Nor do I understand why the employ-
ees would know or care if Local 100 waived any right to file
objections to the election based on evidence supporting an
8(a)(2) charge. What the Employer seems to be arguing is that
the employees’ interest in having their own choice in selecting
a bargaining representative would be better served by postpon-
ing the election for an indefinite period of time, while an unfair

7 I note that before Dana, the Board had a policy of holding an elec-
tion in abeyance if the petitioning union filed an 8(a)(2) unfair labor
practice charge. But there is nothing in the statute itself that compels
such a procedure. That is, the Act does not forbid a Regional Director,
in a representation case, from determining that a recent recognition
agreement executed with an intervening union should not bar an elec-
tion where there is evidence tending to throw substantial doubt on the
Intervenor’s claim that it represented an uncoerced majority at the time
of its recognition. That need not be the equivalent of making an af-
firmative determination, in the representation case, that an unfair labor
practice has been committed; but simply a determination that the inter-
vening union’s claim that its recognition should prevent the employees
from having a right to an election should not be honored.
labor practice charge alleging unlawful assistance to Local 713
wends its way through the prolonged procedure required to
determine unfair labor practice allegations. I really don’t un-
derstand why that is a preferable procedure than one pursuant
to which a secret ballot election is conducted in an expeditious
manner that would, in the absence of interfering or intimidating
conduct by any of the parties, objectively resolve which union
if any, the employees prefer.
E. The Refusal to Bargain Allegation
The evidence in this case shows that recognition was granted
to Local 713 on November 10, 2008. Nevertheless, the evi-
dence shows that Local 713 did not request bargaining until
after Local 100 filed its representation petition in the same
bargaining unit. Thus, the record in this case shows that Local
713 sat on its hands for a little less than 4 months and did noth-
ing to commence negotiations after the employer granted it
recognition.
In cases involving voluntary recognition, the Board required
the party to bargain for a reasonable time after the granting of
recognition. But there is no arithmetical standard as to what
constitutes a reasonable amount of time. Royal Coach Lines,
282 NLRB 1037, 1038 (1987).
In AT Systems West, Inc., 341 NLRB 57 (2004), the Board
applied a multifactor test and found that reasonable period of
bargaining had not elapsed when the employer withdrew
recognition 5-1/2 months after bargaining had commenced.
The Board found that the most probative facts were that the
parties were bargaining for a first contract, that they were not at
an impasse, and that they held just three, 2-hour, bargaining
sessions. In the Board’s opinion, those facts outweighed the
countervailing considerations that the parties neither experi-
enced any particular bargaining complexities nor were on verge
of an agreement.
In my opinion, the facts in this case show that a reasonable
time had passed. As noted above, the Union was recognized on
November 10, 2008, but failed for a significant time, to request
bargaining. There is no explanation for this delay and even
assuming that employees had designated Local 713 as their
bargaining representative, they had nothing to show for that
authorization. From the employer’s point of view, it could
simply sit, wait and do nothing.
Moreover, Local 713, having done nothing to represent the
people in the unit finally woke up only after another union
came onto the scene and filed a petition for an election. And
when an election was ultimately held, it was objectively
demonstrated that the employees in the bargaining unit did not
(even if they ever did), want to have Local 713 as their repre-
sentative.
These circumstances may be somewhat sui generis and are
unlikely to recur in the future. But based on the circumstances
described here, I find that the Employer did not have any fur-
ther obligation to bargain with Local 713 after it had failed to
request bargaining for a substantial period of time and after a
question concerning representation had been raised by the filing
of a representation petition by Local 100. I therefore recom-
mend that the complaint in Case 2–CA–39193 be dismissed in
its entirety. I also conclude that Local 713’s Objections to the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1724
extent that they allege a refusal to bargain, are without merit
and should be overruled.
Accordingly, based on the above and the record as whole, I
conclude that the complaint should be dismissed and that the
Objections to the election should be dismissed.
[Recommended Order omitted from publication.]