Latino Express, Inc.

National Labor Relations Board - Board Decisions

Mar 25, 2016

13-CA-122006 (N.L.R.B. Mar. 25, 2016)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
LATINO EXPRESS, INC.
and Case 13-CA-122006
TEAMSTERS LOCAL 777
DECISION AND ORDER
On November 25, 2015, Latino Express, Inc. (the Respondent), Teamsters Local
777 (the Union), and the General Counsel of the National Labor Relations Board entered
into a Formal Settlement Stipulation, subject to the Board’s approval, providing for the
entry of a consent order by the Board and a consent judgment by any appropriate United
States Court of Appeals. The parties waived all further and other proceedings before the
Board to which they may be entitled under the National Labor Relations Act and the
Board’s Rules and Regulations, and the Respondent waived its right to contest the entry of
a consent judgment or to receive further notice of the application therefor.
The National Labor Relations Board has delegated its authority in this proceeding to
a three-member panel.
The Formal Settlement Stipulation is approved and made a part of the record, and
the proceeding is transferred to and continued before the Board in Washington, D.C., for
the entry of a Decision and Order pursuant to the provisions of the Formal Settlement
Stipulation.
Based on the Formal Settlement Stipulation and the entire record, the Board makes
the following
Findings of Fact
1. The Respondent’s business
The Respondent is engaged in the business of providing bus transportation services
for students as well as charter bus services to the general public.
In the past calendar year, a representative period, the Respondent has received
gross revenues in excess of $250,000 and purchased and received at its Chicago, Illinois
facility goods, products, and materials valued in excess of $5,000 from points directly
outside the State of Illinois.
The Respondent is now, and has been at all material times, an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
2. The labor organization
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The Union is now, and has been at all material times, a labor organization within the
meaning of Section 2(5) of the Act.
ORDER
Based on the above findings of fact, the Formal Settlement Stipulation, and the
entire record, and pursuant to Section 10(c) of the National Labor Relations Act, the
National Labor Relations Board orders that:
The Respondent, Latino Express, Inc., Chicago, Illinois, its officers, agents,
successors, and assigns, shall
1. Cease and desist from:
(a) Maintaining in its employee handbook unlawful rules that preclude employees
from: (1) any action that jeopardizes company contracts or loss of revenues; or (2) any
activity which causes harm to the operations or reputation of the Respondent.
(b) Failing and refusing to recognize and bargain collectively with, the Teamsters
Local Union No. 777 (the Union) as the exclusive collective-bargaining representative of its
employees in the following appropriate unit:
All full-time and regular part-time drivers employed by the Employer at its
facility presently located at 3230 West 38th Street, Chicago, Illinois;
excluding mechanics, dispatchers, trainers, charter directors, payroll people,
payroll assistants, public relations people, maintenance directors, office
personnel, professional employees, managerial employees, guards, and
supervisors as defined in the Act.
(c) Failing to give notice to and to bargain with the Union concerning the
termination of unit employee Franklin Flores.
(d) In any other 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 effectuate the policies of the
Act:
(a) Within 14 days of the Board’s Order, to the extent it has not already done so,
rescind any rules in its employee handbook that preclude employees from any activity that
jeopardizes company contracts or loss of revenues and any activity which causes harm to
the operation or reputation of Latino Express Bus, Inc.
(b) Recognize and bargain with Teamsters Local Union No. 777 (the Union), as the
exclusive collective-bargaining representative of the employees in the appropriate unit
described elsewhere here and sign any agreement reached on terms and conditions of
employment.
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(c) Bargain with the Union in good faith or to impasse, regarding the termination of
unit employee Franklin Flores.
(d) Before issuing discretionary discipline which would have an immediate impact
on employees’ tenure, status or earnings, notify and, on request, bargain with the Union as
the exclusive collective-bargaining representative of its unit employees.
(e) Furnish employees with inserts for the current employee handbook that (1)
advise that the unlawful rule has been rescinded or (2) provide the language of a lawful
rule; or publish and distribute revised handbooks that: (1) do not contain the unlawful rule
or (2) provide the language of a lawful rule.
(f) 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.
(g) Submit to the Compliance Officer of Region 13, written bargaining status reports
every 30 days for a period of 6 months.
(h) Within 14 days after service by the Region, post at its Chicago, Illinois facility
copies of the “Notice to Employees.” Copies of the notice in English and Spanish, on
forms provided by the Regional Director for Region 13, 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 altered, defaced, or covered by any other
material. If 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 September 20, 2010.
(i) Within 14 days after service by the Region, hold a meeting or meetings,
scheduled to ensure the widest possible attendance, at which the “Notice to Employees” is
to be read to the employees by the Respondent's co-owner and vice president, Henry
Garduñio, Junior or at the Respondent's option, by a Board agent in the presence of Henry
Garduñio, Junior with translation available. If Garduñio, Junior is no longer an owner or
officer of the Respondent, then the Respondent shall designate another owner or officer to
conduct or be present for the reading.
(j) Within 14 days from the date of this Order, offer Franklin Flores reinstatement
and make him whole for any loss of earnings and other benefits as a result of the unlawful
discrimination against him.
(k) Within 14 days from the date of this Order, remove from the Respondent’s files
any references to the unlawful discharge of Franklin Flores and, within 3 days thereafter,
notify him in writing that this has been done and that the discharge will not be used against
him in any way.
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(l) Compensate Franklin Flores for the adverse tax consequences, if any, of
receiving one or more lump-sum backpay awards covering periods longer than 1 year.
(m) File a report with the Social Security Administration allocating backpay to the
appropriate quarters.
(n) Withdraw all requests for review of Board orders currently before Courts of
Appeals.
(o) Publish the signed Notice and “Explanation of Rights” in the Chicago Sun-Times
and Hoy.
(p) Mail the signed Notice and “Explanation of Rights” to the homes of all former
employees at their last known address who were employed from December 2010 to the
approval of this agreement.
(q) Mail the Board Order to all current employees, supervisors, and managers and
all former employees employed during relevant times and mail the Board decision and
order to newly hired employees, supervisors and manager within 7 days of their hire for a
period of 3 years. The mailing should include an explanation that the materials are being
sent pursuant to a Board Order.
(r) For 3 years, provide copies of the Notice and “Explanation of Rights” to all new
employees, supervisors and managers within 7 days from the date of their employment.
(s) Post the signed Notice and “Explanation of Rights” in the facility for 3 years.
(t) Read the “Explanation of Rights” to all employees, supervisors, and managers at
a meeting where at least three-fourths of the complement of unit employees are present.
The meeting shall be held in the presence of a Board agent, and the notice and
Explanation of Rights shall be read by the Respondent’s Owner/President or, at the
Respondent’s option, by the Board agent in the presence of the Respondent’s
Owner/President. At least two supervisors/managers must be present at the reading. The
Respondent shall maintain sign-in sheets for supervisors and managers at the readings,
give them copies of the notice and the Explanation of Rights at the time of the reading, and
maintain receipts. The Respondent shall also afford the Union, through the Regional
Director, reasonable notice and opportunity to have a representative present when the
notice and the Explanation of Rights are read to employees. Translation shall be made
available for any individual whose language of fluency is other than English. The meetings
shall be for the above-stated purpose only. The Respondent shall allow all employees to
attend these meetings without penalty or adverse employment consequences, either
financial or otherwise.
(u) Meet for bargaining sessions with the Union for two months, no less than twice
per month for six hours. At the conclusion of the two months of mandatory sessions, the
parties will report their progress and satisfaction with bargaining progress to the Region. If
the Region determines that continued bi-weekly bargaining is necessary, the Region can
5
require additional mandatory sessions of its choosing for one year. If the parties are in
agreement regarding the sufficiency of the bargaining progress, the parties can set their
own schedule for bargaining after the two months of initial bargaining has concluded.
(v) Provide the Union with a meeting, exclusive of any other meetings required by
this agreement, for a duration of no less than 30 minutes during working time in order for
the Union to acclimate itself with the bargaining unit employees. Management personnel
are prohibited from attending the meeting.
(w) Permit Agents of the Board, for a period of 3 years, to visit the Respondent’s
facility to monitor compliance of the posting, distribution, and mailing requirements.
(x) Grant access to the facility/break room area to the Union once per week
provided the Union gives 24 hours notice of its intention to access the facility.
(y) Reintroduce the Union to the employees at the company for no less than 30
minutes with the Company President present. Introductions to be made (1) upon signing
of the settlement agreement; (2) beginning of the year; (3) after winter holiday break; and
(4) before summer school.
(z) Provide the Union a bulletin board where employees can access it.
(aa) Provide the Union a list of the Unit with contact information and seniority.
Dated, Washington, D.C., March 25, 2016
___________________________________
Mark Gaston Pearce, Chairman
_________________________________
Kent Y. Hirozawa, Member
_________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
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APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
PURSUANT TO A STIPULATION PROVIDING FOR A BOARD ORDER
AND A CONSENT JUDGMENT OF ANY APPROPRIATE
UNITED STATES COURT OF APPEALS
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 benefit and protection
 Choose not to engage in any of these protected activities.
WE WILL NOT maintain an employee handbook with unlawful rules that preclude
employees from: (1) any action that jeopardizes company contracts or loss of revenues; or
(2) any activity which causes harm to the operations or reputation of the company.
WE WILL NOT fail or refuse to recognize and bargain collectively with, the Teamsters
Local Union No. 777 (the Union) as the exclusive collective-bargaining representative of
employees in the following appropriate unit:
All full-time and regular part-time drivers employed by the Employer at its facility
presently located at 3230 West 38th Street, Chicago, Illinois; excluding mechanics,
dispatchers, trainers, charter directors, payroll people, payroll assistants, public
relations people, maintenance directors, office personnel, professional employees,
managerial employees, guards, and supervisors as defined in the Act.
WE WILL NOT fail to give notice to and to bargain with the Union concerning the
termination of unit employee Franklin Flores.
WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise
of the rights guaranteed you under Section 7 of the Act.
WE WILL within 14 days of the Board’s Order, to the extent we have not already done so,
rescind any rules in our employee handbook that preclude employees from any activity
that jeopardizes company contracts or loss of revenues and any activity which causes
harm to the operation or reputation of Latino Express Inc.
WE WILL recognize and bargain with Teamsters Local Union No. 777 (the Union), as the
exclusive collective-bargaining representative of the unit and sign any agreement reached
on terms and conditions of employment.
7
WE WILL bargain with the Union in good faith or to impasse, regarding the termination of
unit employee Franklin Flores.
WE WILL before issuing discretionary discipline which would have an immediate impact
on employees’ tenure, status or earnings, notify and, on request, bargain with the Union as
the exclusive collective-bargaining representative of our unit employees.
WE WILL furnish employees with inserts for the current employee handbook that (1)
advise that the unlawful rule has been rescinded or (2) provide the language of a lawful
rule; or publish and distribute revised handbooks that: (1) do not contain the unlawful rule
or (2) provide the language of a lawful rule.
WE WILL 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 we have taken to comply with the terms of the settlement agreement.
WE WILL submit to the Compliance Officer of Region 13, written bargaining status reports
every 30 days for a period of 6 months.
WE WILL within 14 days after service by the Region, post at our Chicago, Illinois facility
copies of the “Notice to Employees”. Copies of the notice in English and Spanish, on
forms provided by the Regional Director for Region 13, after being signed by our
authorized representative, shall be posted and maintained for 60 consecutive days in
conspicuous places, including all places where notices to employees are customarily
posted. We shall take reasonable steps to ensure that the notices are not altered,
defaced, or covered by any other material. If we go out of business or close the facility, we
shall duplicate and mail, at our own expense, a copy of the notice to all current employees
and former employees employed at any time since September 20, 2010.
WE WILL within 14 days after service by the Region, hold a meeting or
meetings, scheduled to ensure the widest possible attendance, at which the
“Notice to Employees” will be read to unit employees by co-owner and vice
president, Henry Garduñio, Junior or by a Board agent in the presence of Henry
Garduñio, Junior with translation available. If Garduñio, Junior is no longer an
owner or officer, then we shall designate another owner or officer to conduct or
be present for the reading.
WE WILL within 14 days from the date of this Order, offer Franklin Flores
reinstatement and make him whole for any loss of earnings and other benefits
as a result of the unlawful discrimination against him.
WE WILL within 14 days from the date of this Order, remove from our files any
references to the unlawful discharge of Franklin Flores and, within 3 days
thereafter, notify him in writing that this has been done and that the discharge
will not be used against him in any way.
8
WE WILL compensate Franklin Flores for the adverse tax consequences, if any,
of receiving one or more lump-sum backpay awards covering periods longer
than 1 year.
WE WILL file a report with the Social Security Administration allocating backpay
to the appropriate quarters.
WE WILL withdraw all requests for review of Board orders currently pending in
the Courts of Appeals.
WE WILL publish the signed Notice and “Explanation of Rights” in the Chicago
Sun-Times and Hoy.
WE WILL mail the signed Notice and “Explanation of Rights” to the homes of all
former employees at their last known address who were employed from
December 2010 to the approval of this agreement.
WE WILL mail the Board order to all current employees, supervisors, and
managers and all former employees employed during relevant times and mail
the Board decision and order to newly hired employees, supervisors and
managers within 7 days of their hire for a period of 3 years. The mailing will
include an explanation that the materials are being sent pursuant to a Board
Order.
WE WILL for 3 years, provide copies of the Notice and “Explanation of Rights” to
all new employees, supervisors and managers within 7 days from the date of
their employment.
WE WILL post the signed Notice and “Explanation of Rights” in the facility for 3
years.
WE WILL read the “Explanation of Rights” to all employees, supervisors, and
managers at a meeting where at least three-fourths of our complement of unit
employees are present. The meeting shall be held in the presence of a Board
agent, and the notice and Explanation of Rights shall be read by our
Owner/President or, at our option, by the Board agent in the presence of our
Owner/President. At least two supervisors/managers must be present at the
reading. We shall maintain sign-in sheets for supervisors and managers at the
readings, give them copies of the notice and the Explanation of Rights at the
time of the reading, and maintain receipts. We shall also afford the Union,
through the Regional Director, reasonable notice and opportunity to have a
representative present when the notice and the Explanation of Rights are read to
employees. Translation shall be made available for any individual whose
language of fluency is other than English. The meetings shall be for the above-
stated purpose only. We shall allow all employees to attend these meetings
without penalty or adverse employment consequences, either financial or
otherwise.
9
WE WILL meet for bargaining sessions with the Union for two months, no less
than twice per month for six hours. At the conclusion of the two months of
mandatory sessions, the parties will report their progress and satisfaction with
bargaining progress to the Region. If the Region determines that continued bi-
weekly bargaining is necessary, the Region can require additional mandatory
sessions of its choosing for one year. If the parties are in agreement regarding
the sufficiency of the bargaining progress, the parties can set their own schedule
for bargaining after the two months of initial bargaining has concluded.
WE WILL provide the Union with a meeting, exclusive of any other meetings
required by this agreement, for a duration of no less than 30 minutes during
working time in order for the Union to acclimate itself with the bargaining unit
employees. Management personnel are prohibited from attending the meeting.
WE WILL permit Agents of the Board, for a period of 3 years, to visit our facility
to monitor compliance of the posting, distribution, and mailing requirements.
WE WILL grant access to the facility/break room area to the Union once per
week provided the Union gives 24 hours notice of its intention to access the
facility.
WE WILL reintroduce the Union to the employees at the company for no less
than 30 minutes with the Company President present. Introductions to be made
1) upon signing of the settlement agreement; 2) beginning of the year; 3) after
winter holiday break; and 4) before summer school.
WE WILL provide the Union a bulletin board where employees can access it.
WE WILL provide the Union a list of the Unit employees with contact information
and seniority.
LATINO EXPRESS, INC.
The Board’s decision can be found at www.nlrb.gov/case/13-CA-122006 or by using the
QR code below. Alternatively, you can obtain a copy of the decision from the Executive
Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.