First Student, Inc.

National Labor Relations Board - Board Decisions

Nov 28, 2008

353 N.L.R.B. 512 (N.L.R.B. 2008)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
353 NLRB No. 55
512
First Student, Inc. and Teamsters Local No. 449.
Case 3–CA–26584
November 28, 2008
DECISION AND ORDER
BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN
On September 3, 2008, Administrative Law Judge
George Carson II issued the attached decision. The Re-
spondent filed exceptions and a supporting brief and the
General Counsel and the Charging Party filed answering
briefs.
The National Labor Relations Board1 has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,2 and conclusions 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, First Student, Inc., North
Tonawanda, New York, its officers, agents, successors,
and assigns, shall take the action set forth in the Order,
except that the attached notice is substituted for that of
the administrative law judge.3
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Schaumber and Member Liebman constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
2 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.
There are no exceptions to the judge’s finding that the Respondent
violated Sec. 8(a)(5) by failing and refusing to meet and bargain with
the Union regarding the discharges of employees Antholzner and Rai-
mondo.
3 The substitute notice reorders the notice paragraphs in accord with
the Board’s traditional practice of including all injunctive provisions
prior to affirmative remedial provisions.
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 unilaterally, without notice to or bargain-
ing with the Union, enforce our previously unenforced
driving under the influence policy with regard to em-
ployees who are represented by Teamsters Local No. 449
in the following appropriate unit:
Included: All full-time and regular part-time
school bus drivers, aides and mechanics employed
by the Respondent at its 655 Walck Road, North To-
nawanda, New York, facility.
Excluded: All office clerical employees, techni-
cians-in-charge, dispatchers, guards, professional
employees and supervisors as defined in the Act, and
all other employees.
WE WILL NOT discharge any of you pursuant to the uni-
lateral enforcement of our driving under the influence
policy.
WE WILL NOT fail and refuse to meet and bargain with
the Union regarding the discharge of any of you in the
appropriate unit represented by the Union who have been
discharged by our illegal enforcement of our driving un-
der the influence policy.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL rescind the unilateral change that we made in
the terms and conditions of employment of unit employ-
ees by enforcing our driving under the influence policy.
WE WILL, within 14 days from the date of the Board’s
Order, offer Matthew Raimondo, Carl Antholzner, and
Shawn Kazmierczak 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.
WE WILL make them whole for any loss of earnings and
other benefits suffered as a result of the discrimination
against them, with interest.
WE WILL, within 14 days of the Board’s Order, remove
from our files any reference to the unlawful discharges of
Matthew Raimondo, Carl Antholzner, and Shawn Kaz-
FIRST STUDENT, INC. 513
mierczak and WE WILL within 3 days thereafter notify
them in writing that this has been done and that the dis-
charges will not be used against them in any way.
FIRST STUDENT, INC.
Linda M. Leslie, Esq., for the General Counsel.
Vincent J. Tersigni, Esq., for the Respondent.
E. Joseph Giroux Jr. and Catherine Creighton Esqs. (on brief),
for the Charging Party.
DECISION
STATEMENT OF THE CASE
GEORGE CARSON II, Administrative Law Judge. This case
was tried in Buffalo, New York, on July 16, 2008, pursuant to a
complaint that issued on May 30, 2008.1 The complaint alleges
that the Respondent unilaterally began enforcing its policy
relating to convictions for driving under the influence or while
impaired by drugs or alcohol and, pursuant to that enforcement,
terminated three employees in violation of Section 8(a)(5) of
the National Labor Relations Act (the Act), and that the Re-
spondent thereafter refused to meet and bargain with the Union
regarding the termination of two of the three terminated em-
ployees in violation of Section 8(a)(5) of the Act. The Respon-
dent denies that it violated the Act. I find that the Respondent
did violate the Act substantially as alleged in the complaint.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by all parties, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, First Student, Inc. (the Company), is en-
gaged in the business of providing bus transportation services
from various facilities throughout the United States including
its facility in North Tonawanda, New York. The Company
annually derives gross revenues in excess of $250,000 and
purchases and receives at its North Tonawanda, New York
facility goods valued in excess of $5000 directly from points
outside the State of New York. The Respondent admits, and I
find and conclude, 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 find and conclude, that Team-
sters Local No. 449 (the Union), is a labor organization within
the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Company, as its name implies, is chiefly engaged in the
transportation of school children. The managers of its multiple
facilities report to superiors located in various locations. At the
relevant times herein, the North Tonawanda, New York facility,
was supervised by General Manager Mary Deschamps, the

1 The transcript is hereby corrected to reflect the July 16 date of
hearing. All dates are in 2008, unless otherwise indicated. The charge
was filed on February 13, and amended on April 21.
highest ranking official at that location, and Safety Coordinator
and Assistant Manager Linda Malczewski. Malczewski, who is
still employed by the Company, is currently the acting manager
at another location. Deschamps reported on safety matters to
Regional Safety Manager Nicholas DeSantis, who was located
in North Haledon, New Jersey, as was Regional Vice President
Frank Luciano. Company headquarters is located in Cincinnati,
Ohio.
At the North Tonawanda facility, the Company has approxi-
mately 120 employees and operates a fleet of 41 vans and 31
buses. The facility serves several school districts and provides
transportation for regular students as well as students with spe-
cial needs.
The Company began providing bus service from its North
Tonawanda facility in July 2006, following the acquisition of a
predecessor in May 2006. The predecessor was identified as
TNT Bus Service; which had been providing the bus service
since 1992. It appears that another entity, Atlantic Express, had
acquired TNT, but Atlantic Express did not alter the corporate
identity or logos on the TNT buses. The foregoing is immate-
rial insofar as at all relevant times the Company, First Student,
was the employer. In late May 2006, the Company informed
the employees that it had acquired the predecessor and would
begin operations in July. All current employees were invited to
apply.
The Company has a policy prohibiting employment as a
driver of any individual who has been convicted of driving
under the influence or while impaired due to drugs or alcohol
within the past 15 years. There is no evidence that the prede-
cessor had any such prohibition.
Employees Matthew Raimondo and Carl Antholzner, both of
whom had been convicted of driving while impaired by alcohol
and both of whom had been driving for the predecessor, applied
for jobs as drivers with the Company and were hired. The of-
fense in New York is driving with ability impaired (DWIA);
however, the witnesses regularly used the acronym DUI, driv-
ing under the influence, and for consistency I shall use that
acronym throughout this decision.
It is undisputed that Deschamps and Malczewski at North
Towanda and Regional Safety Manager DeSantis and Regional
Vice President Luciano in New Jersey were aware that employ-
ees Matthew Raimondo and Carl Antholzner had been con-
victed of DUI prior to their being hired by the Company and
that both worked for over 18 months before being discharged.
Late in 2007, over a year after the Company assumed the op-
erations at North Tonawanda, the Union conducted an organ-
izational campaign and, following a representation election,
was certified as the exclusive collective-bargaining representa-
tive of employees in the following appropriate unit on Decem-
ber 17, 2007:
Included: All full-time and regular part-time school
bus drivers, aides and mechanics employed by the Re-
spondent at its 655 Walck Road, North Tonawanda, New
York, facility.
Excluded: All office clerical employees, technicians-
in-charge, dispatchers, guards, professional employees and
supervisors as defined in the Act, and all other employees.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD514
B. Facts
Matthew Raimondo was hired by TNT in October 1999, fol-
lowing an interview with Linda Malczewski and filling out an
application. Thereafter, in October 2000, he was convicted of a
DUI and his license was suspended. Upon the reinstatement of
his license in March 2001, he returned to work driving a bus.
At the point that TNT was acquired by Atlantic Express, Rai-
mondo spoke with Malczewski concerning the effect, if any, of
his conviction upon his continued employment. He continued
to work. He spoke with Malczewski again when the Company,
First Student, began taking applications in May 2006.
Malczewski said that she would check, and she did so. About 2
weeks after Raimondo spoke with her, Malczewski informed
him that she and General Manager Deschamps had “good news
for me and them, and that First Student is keeping me on.”
Although Raimondo signed for the company employee hand-
book, he was unaware of the policy relating to DUI convictions
within 15 years.
On January 18, Raimondo was called into the office of Gen-
eral Manager Deschamps where she and Malczewski informed
him that he was being released due to his DUI in 2000. Rai-
mondo protested that they had to be “kidding me, . . . we had
already discussed this.” Deschamps and Malczewski con-
firmed that they had done so, that they knew it was “not fair,
but that’s what we have to do.”
Carl Antholzner began working for TNT in December 2005.
At the time he applied, Antholzner’s license had been sus-
pended due to a DUI conviction. He filled out an application
and explained his situation to Malczewski. Malczewski called
the New York Department of Motor Vehicles and learned that
Antholzner would have his license reinstated and be cleared to
drive a bus on January 12, 2006. He was hired and worked as a
bus aide until his license was reinstated. On May 24, 2006,
Antholzner filled out an application for the Company and was
interviewed by a woman whose name he did not recall. They
reviewed his application which reflected the DUI. Antholzner
pointed out the DUI. The woman who was interviewing him
shook her head and continued the interview. Antholzner recalls
that the woman, in the interview, informed him that he was
hired, but it appears that he may have been mistaken in that
regard because all applications and driving records were re-
viewed in New Jersey before employees were placed on the
company payroll. Antholzner continued to work until January
18. Antholzner received the company handbook but was un-
aware of the DUI within 15 years’ prohibition.
On January 18, Antholzner was called into the office of Gen-
eral Manager Deschamps. Malczewski was present.
Deschamps informed him that he was being released due to his
driving record. Antholzner protested that they knew his driving
record, that he “was upfront and honest.” Deschamps and
Malczewski agreed and stated that they explained the situation
to the “main office and argued with them,” but to no avail.
Shawn Kazmierczak had not worked for TNT. He was hired
by the Company in September 2007. He applied and spoke
with Linda Malczewski. In their interview he explained that he
had a DUI some 7 years ago, in 2000, and that the DUI oc-
curred when he and some friends with whom he was partying
had an encounter with a police officer while riding bicycles.
He had not been driving a motor vehicle. Malczewski, who
thought the situation was “funny and crazy,” stated that it
would not be a problem but she would check. She left the
room, and Kazmierczak observed her talking to another woman
who he later learned was General Manager Deschamps.
Malczewski returned and informed him that the DUI should not
be a problem and that “as far as she knew that there was only a
five year policy.” Kazmierczak was hired, trained, qualified for
a license, and began driving a bus.
On February 1, Kazmierczak was called to the office of Gen-
eral Manager Deschamps who informed him that he was being
let go “because of your DUI.” Kazmierczak responded that the
Company knew that when they hired him, but had hired him
and trained him.
Deschamps denied being aware of Kazmierczak’s DUI con-
viction. I find that she forgot about the conviction. Kaz-
mierczak credibly testified that after he informed Malczewski
of the circumstances of the DUI he observed her consulting
with Deschamps before she informed him that he could be
hired. Malczewski, who is still employed by the Company, did
not testify. The delay between the discharges of Raimondo and
Antholzner and the discharge of Kazmierczak is immaterial.
Assistant Manager Malczewski certified that she had reviewed
a driver abstract dated December 11, 2007, which reports the
conviction. Thus, the Company had notice of the conviction.
Even assuming that Deschamps forgot the conversation with
Malczewski, there can be no credible claim that the Company
was not aware of the conviction at the time Kazmierczak was
hired.
When Deschamps stated to Kazmierczak that he was being
discharged because of his DUI, Kazmierczak responded that the
Company knew that when he was hired. Deschamps did not
deny that assertion, she simply stated that “this is not coming
from me.” She indicted that she was “very bothered” by having
to let him go and gave him the number of the Union, telling
him to call and “see what they can do for you.” The Union
amended the name of Kazmierczak into the charge on April 21.
Kazmierczak also called the company headquarters in Cincin-
nati and explained to a human resources employee the circum-
stance regarding the DUI, just as he had to Malczewski when
he applied for employment. The human resources representa-
tive told him to send a letter explaining the circumstances of the
DUI. He did so. Ultimately, the representative told him that
she was sorry, but she could not help him. Kazmierczak, hav-
ing been told by Malczewski that the policy was 5 years, was
unaware that it was 15 years.
In late May 2006, Regional Safety Manager DeSantis, Re-
gional Vice President Luciano, and approximately eight other
individuals came to the North Tonawanda facility to interview
the employees who wished to submit applications to work for
the Company when it took over. General Manager Deschamps
and Safety Manager Malczewski, at that time, informed DeSan-
tis and Luciano that they were aware of three current drivers
who had DUI convictions on their records, Matthew Raimondo,
Carl Antholzner, and employee Tamara Baldwin. Deschamps
recalled that DeSantis informed her that “they were going to
keep as many employees for First Student as they could.” She
had no recollection of any further comment.
FIRST STUDENT, INC. 515
Regional Safety Manager DeSantis acknowledged that
Deschamps and Malczewski informed him of the DUI convic-
tions of the three employees. He acknowledged that it was the
intent of the Company to “keep as many employees as possi-
ble.” He also acknowledged that he had “the authority to sim-
ply say no we can’t hire these people, because we have this
very strict policy,” but did not do so. DeSantis initially testified
that Vice President Frank Luciano “brought the information up
to HR [Human Resources in Cincinnati] to see if there was
anything we could do to retain these employees, but at the time
there was no one—there was no approval given at the time of
the acquisition.” He immediately elaborated, stating, “We
brought it up to the top person in Cincinnati, which was Rick
Villines.”
Upon questioning by Charging Party’s counsel, DeSantis tes-
tified that he, not Luciano, had attempted to contact Rick Villi-
nes in human resources at company headquarters:
Q. [BY ATTORNEY GIROUX] Now despite the strict
policy, you decide you’re not going to invoke it. Instead
you call Mr. Velintes [sic]?
A. [BY MANAGER DESANTIS] Villines.
Q. Villines, correct?
A. Yes.
Q. And you talked to him, correct?
A. At that point it was a message.
Q. It was a message. You left him a voice mail?
A. Uh-huh.
Q. Okay. Did he call you back?
A. No.
Q. He never called you back?
A. No.
Q. Okay. You went through this hiring process for the
next month and a half to close to two months, . . . and you
never revisited that issue during that time frame?
A. No[,] I did not.
DeSantis explained that after the files of the applicants were
reviewed, and if they were not disqualified, the applicants were
hired by the Company by “sending the file back [to North To-
nawanda] and entering them into the payroll.” DeSantis did not
testify to any conversation between himself and the woman
who interviewed Antholzner, whose application clearly reflects
his DUI conviction. Nor did DeSantis testify to any conversa-
tion with any employee who reviewed the driving abstracts of
Raimondo and Antholzner, abstracts that reflected their convic-
tions. Regardless of interviews, reviews, or alleged voice mail
messages to which there was no response, the Company did not
disqualify Raimondo and Antholzner from employment.
In late 2007, the Company acquired Laidlaw Transit, Inc., a
competitor. In October 2007, the chief executive officer of
First Student was coming to give assurances to the First Student
employees, “talking to the employees about the new acquisi-
tion; [and telling them] not to be threatened by it.” About this
same time, the Union began its organizational campaign.
Also in October 2007, employee Tamara Baldwin was se-
lected for a random drug test. Contemporaneously, DeSantis
learned that her license was about to be suspended for failure to
pay a ticket for an unspecified traffic offense. DeSantis, upon
review of Baldwin’s file, claims that he was reminded that she
was one of the three employees who Deschamps and
Malczewski had informed him had past DUIs on their record.
On this occasion, DeSantis testified that he called and spoke
directly with Rick Villines, who informed him that all three
employees must be terminated consistent with Company policy.
When asked by counsel for the Respondent whether he would
call his failure to have followed up in 2006 an “oversight,”
DeSantis answered, “Yes.”
The Company’s policy manual provides that “[a]ny of the
following may disqualify a driver: . . . c. Conviction for driving
while intoxicated or substance abuse during the past 15 years.”
(Emphasis added.) As the Charging Party points out in its
brief, the 2006 employee handbook provided that “no applicant
or employee” with a DUI conviction within 15 years could
drive for the Company whereas the 2007 handbook applies the
qualifications only to “applicants.” Notwithstanding the fore-
going inconsistencies, it is undisputed that a DUI conviction
within the past 15 years policy was the basis for the termination
of the three employees at issue here.
DeSantis claims that he called Deschamps and informed her
of what she had to do, terminate all three because they had
DUIs within the past 15 years. Deschamps claims that she
protested, but to no avail. She further testified that “Linda
Malczewski was a part of that conversation as well.” Thereaf-
ter, Deschamps testified that “Linda Malczewski and myself
weren’t real happy about the situation” and called DeSantis
explaining that “it was going to be hard to terminate these em-
ployees.” Deschamps stated that Malczewski was also in-
volved in that conversation and that DeSantis repeated his in-
struction, telling them that they “still had to follow directions
for [from] First Student.”
When asked whether, consistent with the purported directive
from DeSantis, she discharged Baldwin for the DUI,
Deschamps testified, “No, because she was terminated for
something else . . . [s]he failed a random drug test.” DeSantis
knew that Baldwin went for the drug test “after I had given the
directive” to discharge employees who had DUIs, and that
Baldwin’s drug test came back positive “after the conversation
I had with Mary [Deschamps].” He also knew that the basis for
Baldwin’s termination was “for having a positive result on a
random drug test.” Deschamps claims that she took no action
with regard to Raimondo or Antholzner because there were
“too many things going on,” including the union’s organiza-
tional campaign and the anticipated visit by the Company CEO,
and that she just thought that it “wasn’t a good time to termi-
nate these employees . . . [t]here was too many things going on
at that time.” Deschamps did not claim that her inaction related
to concern about interference with the organizational campaign.
She was not asked and did not address why, having discharged
Baldwin, albeit not pursuant to the purported directive regard-
ing the DUI, she did not also take the action that she claims she
was directed to take against Raimondo and Antholzner.
Deschamps claims that she had no further contract with her
superiors and, notwithstanding the absence of further directives,
discharged Raimondo and Antholzner on January 18, because
she “knew I had to do it under the directive. I had put it off
long enough.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD516
The acquisition of Laidlaw resulted in DeSantis being as-
signed different duties shortly after October 2007. He had no
further responsibility for North Tonawanda and did not follow
up to assure that Deschamps had carried out the directive that
he claims to have given in October 2007. Neither Malczewski,
Luciano, nor Villines testified.
The Union received no notice of the discharges. Richard
Zak, business agent and president of the Union at all times
relevant herein, learned of the discharges of Raimondo and
Antholzner and called Deschamps. She acknowledged to him
that they were both excellent employees, stated that she was
“surprised that this had even happened,” and told him that the
matter was “in the attorney’s hands,” and that “she’d be getting
back to me.” On January 23, Zak wrote Deschamps pointing
out that “we,” the Union, had been certified and requesting “a
meeting with you and Human Resources so that we can resolve
a problem that has developed with the firing of” Raimondo and
Antholzner. Deschamps admitted that she never responded to
the Union. Thereafter, Zak telephoned John Folcarelli, who he
had learned was director of labor relations for First Student,
regarding arrangements for contract negotiations and noting
that the Union “had a problem with the two discharge[s].”
Folcarelli informed Zak that “another attorney will be contact-
ing us [the Union].” Despite the assurance, “no one had con-
tacted us.” Zak retired in late February.
C. Credibility
The Respondent, relying upon the testimony of Deschamps
and DeSantis, argues that the decision to discharge was made in
October 2007, before the Respondent had a bargaining obliga-
tion. There is no documentation of any directive to discharge.
As hereinafter discussed, I do not credit the testimony of
Deschamps and DeSantis in that regard.
The testimony of DeSantis regarding contact with Human
Resources Director Villines in 2006 was contradictory. After
first testifying that Vice President Luciano contacted Villines
and that “[w]e brought it up to the top person in Cincinnati,
which was Rick Villines,” DeSantis claimed that he, not
Luciano, made the contact and that he left an unreturned voice
mail. The foregoing contradictory testimony establishes that
nothing was brought up “to the top person in Cincinnati.” I do
not credit the testimony of DeSantis that he left an unreturned
voice mail message. If he had sought to bring up anything, he
would have followed up. There was no “oversight.” No unre-
turned voice mail message was left in 2006.
Contrary to the testimony of DeSantis, I further find that no
conversation with Villines occurred in October 2007. Villines
did not testify. I do not credit the testimony of DeSantis that,
after being informed of the Baldwin situation, he directed
Deschamps to discharge all employees who had DUIs within
the past 15 years. DeSantis knew that Baldwin went for the
drug test “after I had given the directive” to discharge employ-
ees who had DUIs, and was thereafter discharged “for having a
positive result on a random drug test.” If there had been a di-
rective to discharge all employees with DUIs, there would have
been no reason to have sent Baldwin for a “five panel drug
test,” and DeSantis would certainly have questioned General
Manager Deschamps regarding why she had not immediately
obeyed his order to discharge the employees who had DUIs
within 15 years. If he had given her that order, Deschamps
would have done so. According to Deschamps, Assistant Man-
ager Malczewski was involved in the conversations regarding
that directive, and she did not testify. Malczewski is still em-
ployed by the Company, serving as acting manager at a differ-
ent facility.
I agree with the argument of the Charging Party that General
Manager Deschamps, a competent and reliable supervisor,
would not ignore “the clear mandate of a superior.” She would
not disobey a direct order to terminate specific employees,
those who were working notwithstanding their DUI convic-
tions. Although claiming that she received a direct order in
October 2007 to discharge those employees, Deschamps did not
do so. I find that incredible. The fact that Deschamps did not
immediately terminate Baldwin, but did so after she failed the
random drug test, is virtually conclusive evidence that no direc-
tive to discharge employees with DUIs was given. Further,
confirmation of the foregoing finding is established by the fact
that Deschamps terminated Baldwin after she failed the random
drug test for that reason, with no reference to the DUI policy.
She took no action with regard to Raimondo and Antholzner or
to Kazmierczak, about whose conviction she had apparently
forgotten.
I do not credit the testimony of Deschamps that she heard
nothing in January regarding the employees who were working
notwithstanding their DUI convictions. There was not “too
much going on” after the visit of the CEO and certification of
the Union on December 17, 2007. If the directive had been
given in October 2007, Deschamps, who claims that she had
“put it off long enough,” would not have spontaneously stated
to Business Agent Zak that she was “surprised that this had
even happened.” There would have been no “surprise” if she
had been carrying out a 3-month old directive. Nor would she
have permitted the employees whom she knew she was going
to discharge to resume work after the Christmas vacation.
Fairness to the employees would dictate that they be informed
that they were being “released” rather than allowed to resume
working in January with no hint of their impending discharges.
As already noted, Assistant Manager Malczewski, who was
present when Raimondo and Antholzner were discharged, did
not testify. I do not credit the testimony of Deschamps that she
discharged these employees in mid-January because of an al-
leged directive that she had received in October and knew that
she “had put it off long enough.”
D. Analysis and Concluding Finding
The complaint alleges that the Respondent unilaterally be-
gan enforcing its policy relating to driving under the influence,
that such enforcement resulted in the termination of three em-
ployees, and that the Respondent thereafter refused to meet and
bargain with the Union regarding the termination of two of the
three terminated employees in violation of Section 8(a)(5) of
the Act.
It is undisputed that there was no notice to or bargaining with
the Union prior to the discharges. The Respondent argues that
there was no material change, “just a delay in enforcement of a
previously existing, nationally enforced driver qualification
FIRST STUDENT, INC. 517
policy.” I disagree. DeSantis acknowledged that he had the
authority to have denied employment to Raimondo, Antholzner,
and Baldwin because of their DUI convictions, and he did not
do so. All were hired. Having permitted these employees to
apply and hiring them notwithstanding the Respondent’s pol-
icy, the failure of the Respondent to enforce its policy was not
an “oversight.” I have not credited the testimony of DeSantis
that a contemporaneous telephone call was made to Cincinnati
in 2006. DeSantis was fully aware of the Respondent’s policy.
If he had sought an exception to that policy, he would have
followed up. There was no “oversight.” There was no tele-
phone call.
The Respondent argues, citing various cases, that the deci-
sion to discharge was made prior to its bargaining obligation.
Those cases are inapposite insofar as I have not credited the
testimony of Deschamps that she was directed to discharge the
employees in October 2007. The directive to discharge the
employees and the effectuation of that directive by Deschamps
occurred in January 2008.
Accepting, arguendo, the claim of an October 2007 directive,
this case does not involve an economic decision that was held
in abeyance in order to assure that there was no interference
with a union organizational campaign or an upcoming represen-
tation election. See Starcraft Aerospace, Inc., 346 NLRB 2006
(2006). There is no claim here that the failure of Deschamps to
act was to avoid potential interference. Any such claim would
be rebutted by the fact that she discharged Baldwin in October,
albeit not for a violation of the DUI policy.
Even if I were to have found that the directive was given in
October 2007, the discharge decision was made by Deschamps
in January 2008. The Respondent, in its brief, argues that the
delay in discharging Raimondo and Antholzner was “due to
Ms. Deschamps own personal decision not to follow Mr. De-
Santis’ direct order until January.” Accepting that argument, it
cannot be found that the directive was the operative decision.
Deschamps did not rely on the directive when discharging
Baldwin. She discharged Baldwin for failing a random drug
test. Deschamps made her “own personal decision” not to com-
ply with the October 2007 directive and thereafter made the
decision to discharge the employees who had DUI convictions
in January, after the Respondent was obligated to bargain with
the Union. Precedent establishes that, with regard to dis-
charges, the operative date is the date of notification to the
employee. As pointed out in Timsco, Inc. v. NLRB, 819 F.2d
1173, 1181 (D.C. Cir. 1987):
A commonsense understanding of when a discharge “hap-
pens” suggests that notice to the discharged employee is the
operative event. Moreover, the Board itself chose the date of
notice (rather than the date of decision) as the date of dis-
charge in Mt. Carmel Hospital, 255 NLRB 833 fn. 2 (1981).
We thus conclude that . . . [the employee’s] discharge oc-
curred post-certification and that the Company therefore is
obliged to bargain with the certified union on this issue.
Thus, even if it be assumed that the directive was given in
October 2007, as pointed out in the brief of the General Coun-
sel, the Respondent, by General Manager Deschamps at North
Tonawanda, “condoned the violation of its policy” by allowing
the employees to continue to work. The enforcement of the
policy with regard to unit employees at the North Tonawanda
facility and the decision to discharge by the individual who
effectuated the discharges was made in January after the Re-
spondent’s bargaining obligation attached.
Notwithstanding the foregoing discussion, I reiterate that I
find that both the directive to discharge and the effectuation of
that directive occurred in January. The unilateral enforcement
of the DUI policy constituted a change in the working condi-
tions of the unit employees and violated the Act. “[T]he vice
involved in [a unilateral change] . . . is that the employer has
changed the existing conditions of employment. It is this
change which is prohibited and which forms the basis of the
unfair labor practice charge.” Daily News of Los Angeles, 315
NLRB 1236, 1237 (1994), enfd. 73 F.3d 406 (D.C. Cir. 1996),
cert. denied 519 U.S. 1090 (1997) (quoting NLRB v. Dothan
Eagle, 434 F.2d 93, 98 (5th Cir. 1970)). (Emphasis in the origi-
nal.) This is true even when the policy is written because the
enforcement of the policy constitutes the change. “Thus, de-
spite the Respondent’s written policy . . . the Respondent ha[d]
not previously enforced this requirement.” Flambeau Airmold
Corp., 334 NLRB 165, 166 (2001). See also Vanguard Fire &
Security Systems, 345 NLRB 1016, 1017 (2005).
The bargaining obligation in this proceeding is the bargain-
ing obligation for the unit at the North Tonawanda facility.
Despite its overall corporate policy, the Respondent knowingly
hired employees with DUI convictions within 15 years at North
Tonawanda. As the General Counsel’s brief correctly points
out, bringing a facility into compliance with an overall written
corporate policy is no defense to failure to bargain with the
exclusive collective-bargaining representative of the employees
in the affected unit. United Rentals, 350 NLRB 951, 952
(2007). The enforcement of its previously unenforced DUI
policy with regard to the North Tonawanda unit constituted a
change in policy that affected those employees’ terms and con-
ditions of employment. By unilaterally enforcing the DUI pol-
icy with regard to the North Tonawanda unit after the certifica-
tion of the Union without notice to or bargaining with the Un-
ion, the Respondent violated Section 8(a)(5) of the Act.
The Respondent’s unilateral enforcement of the DUI policy
resulted in the discharge of three employees. “If the Respon-
dent’s unlawfully imposed rules or policies were a factor in the
discipline or discharge, the discipline or discharge violates
Section 8(a)(5).” Great Western Produce, 299 NLRB 1004,
1005 (1990). The unilateral enforcement of the DUI policy
resulted in the discharge of Matthew Raimondo, Carl Anthol-
zner, and Shawn Kazmierczak. I find that those discharges
violated Section 8(a)(5) of the Act.
The Union was not informed that the Respondent was going
to begin enforcing its policy thereby resulting in three dis-
charges. When the Union learned of the discharges of Rai-
mondo and Antholzner, Business Agent Zak spoke with
Deschamps. He thereafter sent her a letter requesting that the
Respondent meet to resolve the matter. Deschamps admitted
that she did not respond to that letter. Zak also spoke with
director of labor relations, John Folcarelli, regarding arrange-
ments for contract negotiations and “the two discharge[s].”
Although Folcarelli informed Zak that “another attorney will be
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD518
contacting us [the Union],” no contact occurred. The Union
filed the charge herein on February 13.
The Respondent argues that the General Counsel has failed
to carry the burden of proof with regard to this allegation be-
cause no other business agent or witness testified “as to what
happened” after Business Agent Zak retired, which occurred in
late February. Contrary to that argument, the General Counsel
established that the Union made both a written and a verbal
request to meet and bargain, but “no one . . . contacted us.”
The Respondent presented no evidence of any response. If the
Respondent did respond, its response would have refuted the
uncontradicted evidence that “no one . . . contacted us.” Failure
to meet and bargain with regard to mandatory subjects of bar-
gaining violates the Act. “Termination of employment consti-
tutes such a mandatory subject.” N.K. Parker Transport, 332
NLRB 547, 551 (2000), citing Ryder Distribution Resources,
302 NLRB 76, 90 (1991). By failing to meet and bargain with
the Union regarding the discharges of Raimondo and Anthol-
zner, the Respondent violated Section 8(a)(5) of the Act.
The Charging Party argues that, in view of the failure of the
Respondent to respond to the request to meet regarding the
discharges of Raimondo and Antholzner, that any request to
meet with regard to Kazmierczak, who was not discharged until
February 1, would have been futile. I agree. However, Busi-
ness Agent Zak acknowledged that he was unaware of the dis-
charge of Kazmierczak. Furthermore, there is no complaint
allegation relative to a failure to meet regarding his discharge.
Thus, I shall make no finding regarding an unalleged violation.
CONCLUSIONS OF LAW
1. By unilaterally enforcing its previously unenforced driv-
ing under the influence policy with regard to North Towanda,
New York unit employees without notice to or bargaining with
the Union, the Respondent has engaged in unfair labor practices
affecting commerce within the meaning of Section 8(a)(1) and
(5) and Section 2(6) and (7) of the Act.
2. By discharging Matthew Raimondo, Carl Antholzner, and
Shawn Kazmierczak pursuant to its unilateral enforcement of
its driving under the influence policy, the Respondent has en-
gaged in unfair labor practices affecting commerce within the
meaning of Section 8(a)(1) and (5) and Section 2(6) and (7) of
the Act.
3. By failing and refusing to meet and bargain with the Un-
ion regarding the discharge of employees pursuant to its unilat-
eral enforcement of its driving under the influence policy, the
Respondent has engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) and (5) and
Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent must rescind its unilateral change in the en-
forcement of its driving under the influence policy with regard
to the North Tonawanda, New York unit.
Having unlawfully discharged Matthew Raimondo, Carl An-
tholzner, and Shawn Kazmierczak pursuant to enforcement of
its previously unenforced driving under the influence policy,
the Respondent must offer them reinstatement and make them
whole for any loss of earnings and other benefits, computed on
a quarterly basis from January 18, 2008, in the cases of Rai-
mondo and Antholzner, and from February 1, 2008, in the case
of Kazmierczak, to date of proper offer of reinstatement, less
any net interim earnings, as prescribed in F. W. Woolworth Co.,
90 NLRB 289 (1950), plus interest as computed in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987).
Counsel for the General Counsel has proposed a notice that
includes an obligation to meet and bargain regarding the dis-
charges of Raimondo and Antholzner. My recommended Order
will direct that the unilateral change and discharges pursuant to
that change be rescinded. Therefore the predicate for an af-
firmative order to bargain with regard to the discharges no
longer exists; the discharges will have been rescinded.
I am mindful that the underlying reason for the policy of the
Respondent relates to safety. This decision does not address
the merit of that policy. The foregoing remedy addresses only
the unilateral change that altered the status quo pursuant to
which the Respondent operated for over a year and a half.
The General Counsel requests compound interest upon any
backpay due. Consistent with the decision of the Board in Glen
Rock Ham, 352 NLRB 516 1 fn. 1 (2008), not to deviate from
its current practice of awarding simple interest, I deny that re-
quest.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended2
ORDER
The Respondent, First Student, Inc., North Tonawanda, New
York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Unilaterally, without notice to or bargaining with the Un-
ion, enforcing its previously unenforced driving under the in-
fluence policy with regard to employees represented by Team-
sters Local No. 449 in the following appropriate unit:
Included: All full-time and regular part-time school
bus drivers, aides and mechanics employed by the Re-
spondent at its 655 Walck Road, North Tonawanda, New
York facility.
Excluded: All office clerical employees, technicians-
in-charge, dispatchers, guards, professional employees and
supervisors as defined in the Act, and all other employees.
(b) Discharging employees pursuant to its unilateral change
in enforcement of its driving under the influence policy.
(c) Failing and refusing to meet and bargain with the Union
regarding the discharges of employees pursuant to its unilateral
enforcement of its driving under the influence policy.

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 pur-
poses.
FIRST STUDENT, INC. 519
(d) In any like or related manner interfering with, restraining,
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 effec-
tuate the policies of the Act.
(a) Rescind the unilateral change made in the terms and con-
ditions of unit employees by enforcement of its driving under
the influence policy.
(b) Within 14 days from the date of this Order, offer Mat-
thew Raimondo, Carl Antholzner, and Shawn Kazmierczak 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 en-
joyed.
(c) Make whole Matthew Raimondo, Carl Antholzner, and
Shawn Kazmierczak for any loss of earnings and other benefits
suffered as a result of the discrimination against them, in the
manner set forth in the remedy section of the decision.
(d) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful discharges, and within 3
days thereafter, notify Matthew Raimondo, Carl Antholzner,
and Shawn Kazmierczak in writing that this has been done and
that the discharges will not be used against them in any way.
(e) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to determine the amount of back-
pay due under the terms of this Order.
(f) Within 14 days after service by the Region, post at its fa-
cilities in North Tonawanda, New York, copies of the attached
notice marked “Appendix.”3 Copies of the notice, on forms
provided by the Regional Director for Region 3, after being
signed by the Respondent’s authorized 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. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Respondent
has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate 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 January 18, 2008.
(g) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.

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 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.”