Petitioner National Labor Relations Board ("Board") petitions for enforcement of its August 31, 2007 Decision and Order ("Order") finding Respondent Consolidated Bus Transit, Inc. ("CBT") to have committed various unfair labor practices in violation of the National Labor Relations Act ("Act"), 29 U.S.C. § 151 et seq. CBT cross-petitions for review of the Order and contends that the Board wrongly concluded that the company discharged employee Juan Carlos Rodriguez, in violation of sections 8(a)(1) and (3) of the Act. CBT asserts also that, even if Rodriguez was discharged, the Act's policies and Board and Circuit precedent preclude the award of back pay as a remedy because Rodriguez was unlicensed to drive a school bus during the back pay period. We disagree, enforce the Order in full, and deny the cross-petition for review.
Argued: December 16, 2008
Before POOLER and KATZMANN, Circuit Judges.*fn1
Petitioner-Cross-Respondent National Labor Relations Board ("Board") petitions this Court for enforcement of its August 31, 2007 Decision and Order ("Order") finding Respondent-Cross-Petitioner Consolidated Bus Transit, Inc. ("CBT") to have committed various unfair labor practices in violation of the National Labor Relations Act ("Act"), 29 U.S.C. § 151 et seq. CBT cross-petitions for review of the Order, contending that substantial evidence does not support the Board's finding that CBT discharged, instead of temporarily disqualified, employee Juan Carlos Rodriguez from employment as a school bus driver, in violation of sections 8(a)(1) and (3) of the Act, 29 U.S.C. § 158(a)(1), (3). CBT asserts also that the Act's remedial policies, this Circuit's decision in NLRB v. Future Ambulette, Inc., 903 F.2d 140 (2d Cir. 1990), and the Board's decision in Anheuser-Busch, Inc., 351 N.L.R.B. No. 40 (Sept. 29, 2007), preclude imposition of a back pay remedy as Rodriguez was not licensed to drive a school bus during the period covered by the back pay award.
Because we defer to the Board's discretion under its own rules and regulations to credit CBT's admission, through its answer, that the company discharged Rodriguez, and because we find that (1) the Act's remedial policies are not contravened by the back pay award in the circumstances of this case, and (2) Future Ambulette and Anheuser-Busch do not compel a contrary result, we deny CBT's petition for review and grant the Board's application for enforcement of its Order in full.
1. Consolidated Bus Transit, Inc. and the 19A Test
CBT provides bus transportation services to the New York City Department of Education and to private schools throughout the New York City area. CBT's approximately 2000 bus drivers and escorts are represented by two different unions, Local 854, International Brotherhood of Teamsters, AFL-CIO ("Local 854"), and Local 1181, Amalgamated Transit Union ("Local 1181").
Under New York State law, bus companies like CBT must administer a driving skills examination known as the "19A test" to each of their school bus drivers, once when the driver is first hired, and every two years thereafter. See N.Y. Veh. & Traf. Law § 509-g(4). The relevant statute also allows employers to administer the 19A test more frequently.
The 19A test consists of two parts: (1) a pre-trip safety inspection of the inside and outside of the bus; and (2) a road test.Each mistake made by a driver results in a pre-set number of penalty points, and drivers who accumulate thirty points fail the test. Moreover, some mistakes result in automatic failure of the test. The parties agree that drivers who fail the 19A test may not operate a school bus for at least five days thereafter, but during that time the driver can receive additional training and schedule a retest, which is administered by a different examiner. Drivers who fail a second test are disqualified from driving a school bus until they are retested and re-certified by the New York State Department of Motor Vehicles ("DMV") in Albany, New York.
In February 2003, one of CBT's drivers was involved in a fatal bus accident. This incident prompted the company to implement a new policy requiring that any driver involved in a bus accident be given a 19A test whether or not that driver had been tested in the previous two years. Furthermore, any driver involved in a bus accident in the year preceding February 2003 also had to be newly tested.
2. Juan Carlos Rodriguez and Teamsters for a Democratic Union From January 1993 to March 27, 2003, Juan Carlos Rodriguez worked as a CBT Bus Driver
During the last year of his employment, he worked at the Zerega Avenue bus yard in the Bronx, New York. In early 2002, Rodriguez began to organize discussions with some of his Local 854-represented co-workers regarding his concern that CBT paid lower wages and benefits under Local 854's collective-bargaining agreement ("CBA") than it paid under the Local 1181 CBA. Rodriguez also contacted, sought assistance from, and joined the Teamsters for a Democratic Union ("TDU"), an internal caucus of International Brotherhood of Teamsters members pushing for reform within that union.
Rodriguez became heavily involved in TDU's efforts. In March and April of 2002, he arranged and led four to six TDU meetings, and Rodriguez and others began collecting signatures for a shop steward election scheduled for June 19. Rodriguez campaigned actively for Jona Fleurimont, distributing and posting numerous flyers in support of Fleurimont's candidacy. Much of this activity occurred in full view of CBT management, who accused the activists of "causing trouble" and "trying to hurt" the company. CBT management showed its opposition to Fleurimont's candidacy by removing many of his campaign flyers but leaving the incumbent candidate's flyers untouched.
Fleurimont won the election, and by mid-September 2002, Rodriguez and the other TDU activist employees were openly distributing and posting flyers at the Zerega yard that addressed a range of workplace issues, including wages, work assignments, and an upcoming TDU conference. In response, CBT removed the flyers and replaced them with a notice announcing a new policy barring all postings absent CBT's express consent. On September 30, 2002, Fleurimont and assistant shop steward Jose Guzman received one-day suspensions for posting flyers on the wall of the drivers' break-room. At a grievance hearing over the suspensions, CBT admitted the suspensions were "unjust," issued an apology, and reversed the punishment.
Between December 10, 2002, and January 20, 2003, Rodriguez and others continued openly to distribute flyers at the Zerega yard. The flyers criticized CBT management, praised the leadership of Fleurimont and Guzman, and urged employees to join in TDU's organizing efforts. Rodriguez was also a signatory to an article in TDU's bi-monthly newsletter that accused CBT of "retaliation, sometimes violent" against TDU activists, an apparent reference to a recent incident in which Fleurimont's car had been vandalized.
3. CBT's Surveillance of Rodriguez
On February 14, 2003, CBT's Bronx safety director, Vito Mecca, followed and videotaped Rodriguez on his morning bus route, the first time Rodriguez had ever been monitored by the company in this way. Rodriguez testified that Mecca told him at the end of the drive that Rodriguez had "done a very good job" but that he had made a "small mistake." Later that day, Rodriguez viewed the tape in Mecca's office, which showed that the right tire of Rodriguez's bus had touched a line marking a safety zone on the roadway. According to Rodriguez, Mecca told him that he did not consider this to be a ...