Community Bus Lines

National Labor Relations Board - Administrative Judge Opinions

Jan 3, 2002

22-CA-024617 (N.L.R.B. Jan. 3, 2002)

JD(NY)–01–02
Newark, NJ
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
COMMUNITY BUS LINES/
HUDSON COUNTY EXECUTIVE EXPRESS
and Case No: 22-CA-24617
PRODUCTION WORKERS UNION, LOCAL #148
Bert Dice-Goldberg, Esq., Counsel for the General Counsel.
Michael T. Scaraggi, Esq., (Oransky, Scaraggi, Borg &
Abbamonte, P.C.) Counsel for the Union.
James Novello, Esq., (Parro, Novello & Francis, P.C.)
Counsel for the Respondent.
DECISION
Statement of the Case
HOWARD EDELMAN, Administrative Law Judge. This case was tried in Newark, New
Jersey on November 27 and December 10, 2001.
Pursuant to charges filed by Production Workers Union Local 148, herein called the
Union, against Community Bus Lines/Hudson County Executive Express, herein called
Respondent, the Regional Director for Region 22 issued a complaint dated September 27,
2001, alleging violations of Section 8 (a) (1) (3) and (5) of the Act.
On December 10, during the trial of this case, Respondent withdrew its answer. Based
upon the entire record herein I make the following findings of facts and conclusions of law.1 At
all material times Respondent, is a New Jersey corporation, with an office and place of business
in Jersey City, New Jersey, herein called Respondent’s Jersey City facility, has been engaged
in the intrastate and interstate transport of passengers via coach bus. During the twelve month
period ending May 31, 2001, Respondent, in conducting its business operations described
above, derived gross revenues in excess of $250,000. During the twelve month period ending
May 31, 2001, Respondent, in conducting its business operations, purchased and/or leased
goods and supplies valued in excess of $5,000 directly from suppliers located outside the State
of New Jersey.
It is admitted and I conclude Respondent is engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.

1 All parties to this case waived the right to file briefs.
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It is admitted and I conclude the Union has been a labor organization within the meaning
of Section 2(5) of the Act.
The following individuals hold the positions set forth opposite their respective names and
have been supervisors of Respondent within the meaning of Section 2(11) of the Act and agents
of Respondent within the meaning of Section 2(13) of the Act:
Jorge Bedoya President
Gustabo Castro Vice President/Dispatcher
Amy Vidal Operations Manager
The following employees of Respondent, herein called the Unit, constitute a unit
appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the
Act: all full-time and regular part-time drivers, owner operators, helpers, mechanics,
maintenance employees and janitors employed by the Employer at its Jersey City, New Jersey
facility; but excluding all office clerical employees, dispatchers, independent contractors, guards
and supervisors as defined in the Act.
From about February 5, 2001 to about March 28, 2001, a majority of the Unit designated
and selected the Union as their representative for the purposes of collective bargaining with the
Employer, and since March 28, 2001, based on Section 9(a) of the Act, the Union has been the
exclusive collective-bargaining representative of the Unit.
Respondent, by Jorge Bedoya, its president in January, and again about February 9, at
its Jersey City facility, interrogated its employees about their concerted activities and the
concerted activities of other employees.
Bedoya in January, February, March, April 1, and May 31, at its Jersey City facility,
threatened its employees with discharge because of their concerted and Union activities and
because they took part in processes before the Board.
Bedoya in January, and again on about February 10, at its Jersey City facility, orally
promulgated, and since then has maintained, a rule prohibiting employees from engaging in
protected concerted activities.
Bedoya in March at its Jersey City facility, created an impression among its employees
that their Union and protected concerted activities were under surveillance by Respondent.
Bedoya in March, at the Port Authority, New York bus terminal, and again at its Jersey
City facility, threatened it would report the immigration status of its employees to the Immigration
and Naturalization Service because of their concerted and Union activities and because they
took part in processes before the Board in related Cases 22-RC-12050 and 22-RC-12094.
Bedoya in March, at its Jersey City facility, threatened its employees with plant closure
because of their concerted and Union activities and because they took part in processes before
the Board.
Bedoya in May 1, at its Jersey City facility, threatened its employees with loss of their
buses, threatened reduction in the number of passengers it would permit its employees to carry
and threatened its employees with discharge because of their concerted and Union activities
and because they took part in processes before the Board.
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Bedoya in May, 2001, at its Jersey City facility, threatened its employees with
deportation because of their concerted and Union activities and because they took part in
processes before the Board in related Cases 22-RC-12050 and 22-RC-12094.
Bedoya on June 26, 2001, at its Jersey City facility, informed its employees that it would
be futile for them to select the Union as their bargaining representative.
Respondent by Amy Vidal, its operations manager, in June, 2001, at its Jersey City
facility, threatened its employees with discharge because of their Union activities and because
they took part in processes before the Board in related Cases 22-RC-12050 and 22-RC-12094.
Respondent by Gustabo Castro, its vice-president in January, at its Journal Square,
Jersey City, NJ bus terminal, interrogated its employees about their protected concerted
activities and the protected concerted activities of other employees.
Castro, in April, and again about July, at the Journal Square, Jersey City, NJ bus
terminal, threatened its employees with discharge because of their Union activities and because
they took part in processes before the Board in related Cases 22-RC-12050 and 22-RC-12094.
I find that the above described activities by Bedoya, Vidal, and Castro constitute
violations of Section 8 (a) (1) of the Act.
During the period of December, 2000 through February, 2001, Respondent’s employees
engaged in protected concerted activities with other employees for the purposes of collective
bargaining and other mutual aid and protection, by participating in meetings regarding the
wages, hours and working conditions of Respondent’s employees.
About the dates set forth opposite their names, Respondent discharged the employees
named below:
Mario Blanco June 1, 2001
Lourdes Melendez June 1, 2001
Ruben Moscoso June 1, 2001
Fernando Pantoja June 1, 2001
Jorge Luna June 1, 2001
Miguel Pantoja July 1, 2001
Fabian Moscoso June 1, 2001
Hugo Guadalupe June 7, 2001
Patricio Guadalupe June 18, 2001
Jairo Tejeiro February 9, 2001
Geovanny Paredes February 9, 2001
Segunda Granja October 19, 2001
I conclude that by such activity, Respondent has violated Section 8 (a) (1) and (3) of the
Act.
In February, Respondent changed the schedules and shifts of its employees, prevented
its drivers from picking up passengers and instituted a rule prohibiting its drivers from working
on weekends. I find such conduct violated Section 8 (a) (1) and (3) of the Act.
About March 26, Respondent suspended Jesus Pimentel. I find such conduct violated
Section 8 (a) (1) and (3) of the Act.
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About March, Respondent began charging its employees late fees on insurance
payments, corporation and terminal fees. I find such conduct violated Section 8 (a) (1) and (3)
of the Act.
About January, and again about May 11, Respondent demanded its employees produce
immigration and other documentation because of their concerted and Union activities. I find
such conduct violated Section 8 (a) (1) and (3) of the Act.
About May 31, Respondent canceled the lease on one of its employee Rodrigo
Guadalupe’s buses. I find such conduct violated Section 8 (a) (1) and (3) of the Act.
About June 1, 2001, Respondent issued written warnings to its employees. I find such
conduct violated Section 8 (a) (1) and (3) of the Act.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent having discriminatorily discharged its employees and discriminatorily
cancelled the leases of its employees’ buses, it must offer them reinstatement and offer to
reinstate the leases on their buses and make them whole for any loss of earnings and other
benefits, computed on a quarterly basis from the date of discharge or cancellation to the date of
valid offer of reinstatement, less any net interim earnings, as prescribed in F. W. Woolworth Co.,
90 NLRB 289 (1950), plus interest as computed in New Horizons for the Retarded, 283 NLRB
1173 (1987). Additionally, in order to obviate any additional federal and/or state income taxes
that the discriminatees may incur as a result of the lump sum payments of their back pay
awards, Respondent must reimburse the discriminatees for any such extra taxes as they may
incur.
As certain of the discriminatees’ made advance payments to Respondent prior to their
unlawful discharges for insurance, corporate and other fees for periods during which they were
not employed by Respondent or during which the leases on their buses had been unlawfully
cancelled by Respondent, I shall recommend that the Respondent be ordered to reimburse any
such advance payments.
As the unfair labor practices in which I have found Respondent has engaged are so
serious and substantial in character that the possibility of erasing the effects of these unfair
labor practices and of conducting a fair election by the use of traditional remedies is slight, and
as Respondent has admitted that the a majority of its employees have expressed their
sentiments regarding representation, I shall recommend that Respondent be ordered to bargain
with the Union, upon request.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended2

2 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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ORDER
The Respondent, Community Bus Lines/Hudson County Executive Express, shall
1. Cease and desist from:
(a) Failing and refusing to bargain collectively with Production Workers Union
Local 148, AFL-CIO, herein the Union, as the exclusive bargaining representative of all
the Respondent's employees in the appropriate unit.
(b) Interrogating its employees about their concerted activities and the
concerted activities of other employees.
(c) Threatening its employees with discharge because of their concerted and
union activities, and because they took part in processes before the National Labor
Relations Board, herein the Board.
(d) Promulgating or maintaining rules prohibiting employees from engaging in
concerted activities.
(e) Creating an impression among its employees that their union and
concerted activities are under surveillance.
(f) Demanding that its employees produce immigration and other
documentation because of their concerted and union activities and because they took
part in processes before the Board.
(g) Threatening to report the immigration status of its employees to the
Immigration and Naturalization Service, or threatening its employees with deportation
because of their concerted and union activities and because they took part in processes
before the Board.
(h) Threatening its employees with plant closure because of their concerted
and union activities and because they took part in processes before the Board.
(i) Threatening its employees with loss of their buses, or threatening
reduction in the number of passengers it will permit its employees to carry on their
buses because of their concerted and union activities and because they took part in
processes before the Board.
(j) Informing its employees that it would be futile for them to select the Union,
or any labor organization, as their bargaining representative.
(k) Suspending, discharging or canceling the leases on its employees' buses
because of their concerted and union activities and because they took part in processes
before the Board.
(l) Charging its employees late fees on insurance payments, corporation and
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terminal fees because of their concerted and union activities and because they took part
in processes before the Board.
(m) Prohibiting its employees from working on weekends, changing the
schedules and shifts of its employees or preventing employees from picking up
passengers because of their concerted and union activities and because they took part
in processes before the Board.
(n) Issuing written warnings to its employees because of their concerted and
union activities and because they took part in processes before the Board.
(o) In any like or related manner interfering with, restraining, or coercing its
employees in the exercise of the rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of
the Act:
(a) Recognize and, on request, bargain with the Union as the exclusive
representative of the employees in the following appropriate unit concerning terms and
conditions of employment and, if an understanding is reached, embody the
understanding in a signed agreement:
All full-time and regular part-time drivers, owner-operators, helpers,
mechanics, maintenance employees and janitors employed by the
Employer at its Jersey City, New Jersey facility, but excluding all office
clerical employees, dispatchers, independent contractors, guards and
supervisors as defined in the Act.
(b) Offer the following employees, who have been found to have been illegally
discharged, 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 discrimination against them in the
manner set forth in the remedy section of this decision, and reimburse them for any
extra federal and/or state income taxes that would or may result from the lump sum
payment of their back pay award:
Maria Blanco, Lourdes Melendez, Ruben Moscoso,
Fernando Pantoja, Jorge Luna, Miguel Pantoja, Fabian
Moscoso, Hugo Guadalupe, Patricio Guadalupe, Jairo
Tejeiro, Geovanny Paredes, and Segunda Granja.
(c) Rescind the suspension given to Jesus Pimentel and make him whole for
any loss of earnings and other benefits they may have incurred, and reimburse him for
any extra federal and/or state income taxes that would or may result from the lump sum
payment of his back pay award.
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(d) Remove from its files any references to the unlawful discharges and
suspension above and notify the employees in writing that this has been done and that
these discharges and suspension will not be used against them in any way.
(e) Reimburse all advance payments for insurance, corporate and other fees
made to the Employer by the above employees.
(f) Refund any late fees on insurance payments, corporation and terminal
fees charged to employees since March 2001.
(g) Reinstate the lease on Rodrigo Guadalupe’s buses.
(h) Rescind written warnings issued to employees since June 1, 2001,
remove from its files any references to these written warnings, and notify the affected
employees in writing that this has been done and that these written warnings will not be
used against them in any way.
(i) Preserve and, on request, make available to the Board or its agents for
examination and copying, all payroll records, social security payment records,
schedules, timecards, personnel records and reports and all other records necessary to
analyze the amount of backpay due under the terms of this Order.
(j) Post at its Jersey City, New Jersey facility, in English and Spanish, copies
of the attached Notice marked "Appendix."3 Copies of the Notice, on forms provided by
the Regional Director for Region 22, after being signed by the Respondent's authorized
representative, shall be posted by the Respondent immediately upon receipt 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
Respondent to ensure that the notices are not altered, defaced, or covered by any other
material.
(k) Notify the Regional Director in writing within 20 days from the date of this
Order what steps the Respondent has taken to comply.
Dated at New York, New York

____________________
Howard Edelman
Administrative Law Judge

3 If this Order is enforced by a judgment of a United States court of appeals, the words in
the Notice reading "Posted by Order of the 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."
JD(NY)–01–02
Newark, NJ
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated the National Labor
Relations Act and has ordered us to post and abide by this notice.
The National Labor Relations Board has found that we violated the national Labor
Relations Act and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights,
To organize
To form, join, or assist any union
To bargain collectively through 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 about their concerted activities and the
concerted activities of other employees.
WE WILL NOT threaten our employees with discharge because of their
concerted and union activities, and because they took part in processes before the
National Labor Relations Board.
WE WILL NOT promulgate, or maintain, rules prohibiting employees from
engaging in concerted activities.
WE WILL NOT create an impression among our employees that their union and
concerted activities are under surveillance by the Employer.
WE WILL NOT demand that our employees produce immigration and other
documentation because of their concerted and union activities and because they took
part in processes before the Board.
WE WILL NOT threaten to report the immigration status of our employees to the
Immigration and Naturalization Service, or threaten our employees with deportation
because of their concerted and union activities and because they took part in processes
before the Board.
WE WILL NOT threaten our employees with plant closure because of their
concerted and union activities and because they took part in processes before the
Board.
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WE WILL NOT threaten our employees with loss of their buses, or threaten
reduction in the number of passengers we will permit our employees to carry on their
buses because of their concerted and union activities and because they took part in
processes before the Board.
WE WILL NOT inform our employees that it would be futile for them to select
Production Workers Union, Local #148, AFL-CIO, herein the Union, or any labor
organization as their bargaining representative.
WE WILL NOT suspend, discharge or cancel the leases on our employees'
buses because of their concerted and union activities and because they took part in
processes before the Board.
WE WILL NOT charge our employees late fees on insurance payments,
corporation and terminal fees because of their concerted and union activities and
because they took part in processes before the Board.
WE WILL NOT prohibit our employees from working on weekends, change the
schedules and shifts of our employees or prevent our employees from picking up
passengers because of their concerted and union activities and because they took part
in processes before the Board.
WE WILL NOT issue written warnings to our employees because of their
concerted and union activities and because they took part in processes before the
Board.
WE WILL NOT fail and refuse to recognize and bargain with the Union as the
exclusive-collective bargaining representative in the following appropriate Unit:
All full-time and regular part-time drivers, owner operators, helpers, mechanics,
maintenance employees and janitors employed by the Employer at its Jersey City,
New Jersey facility, but excluding all office clerical employees, dispatchers,
independent contractors, guards and supervisors as defined in the Act.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce our
employees in the exercise of the rights guaranteed by Section 7 of the Act.
WE WILL reinstate Maria Blanco, Lourdes Melendez, Ruben Moscoso, Fernando
Pantoja, Jorge Luna, Miguel Pantoja, Fabian Moscoso, Hugo Guadalupe, Patricio
Guadalupe, Jairo Tejeiro, Geovanny Paredes, and Segunda Granja, to their former
jobs, rescind the suspension given to Jesus Pimentel and make them whole for any loss
of earnings and other benefits they may have incurred, and reimburse them for any
extra federal and/or state income taxes that would or may result from the lump sum
payment of their back pay award.
WE WILL remove from our files any references to the discharges and suspension
above and will notify these employees in writing that this has been done and that these
discharges and suspension will not be used against them in any way.
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WE WILL reimburse all advance payments for insurance, corporate and other
fees made to the Employer by Maria Blanco, Lourdes Melendez, Ruben Moscoso,
Fernando Pantoja, Jorge Luna, Miguel Pantoja, Fabian Moscoso, Hugo Guadalupe,
Patricio Guadalupe.
WE WILL refund any late fees on insurance payments, corporation and terminal
fees that we charged to our employees since March 2001.
WE WILL reinstate the lease on Rodrigo Guadalupe’s buses.
WE WILL rescind written warnings issued to our employees since June 1, 2001,
remove from our files any references to these written warnings, and will notify the
affected employees in writing that this has been done and that these written warnings
will not be used against them in any way.
WE WILL recognize and, upon request, bargain with the Union as the exclusive-
collective bargaining representative in the Unit.
Community Bus Lines/Hudson County Executives Express
(Employer)
Dated___________ By:_______________________________________
(Representative) (Title)
This is an official notice and must not be defaced by anyone.
This notice must remain posted for 60 consecutive days from the date of
posting and must not be altered, defaced, or covered with any other material. Any
questions concerning this notice or compliance with its provisions may be directed to
the Board's Office, 20 Washington Place, 5th Floor, Newark, New Jersey 07102–2570,
Telephone 973–645–3652.