Robinson Bus Service, Inc

70 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Robinson Bus Service, Inc and Local 241, Amalga- mated Transit Union, AFL-CIO Cases 13-CA- 27112 and 13-CA-26939 December 29, 1988 DECISION AND ORDER BY MEMBERS JOHANSEN, CRACRAFT, AND HIGGINS On April 29, 1988, Administrative Law Judge Robert A Giannasi issued the attached decision The Respondent filed exceptions and a supporting brief, and the General Counsel filed a reply brief The National Labor Relations Board has delegat- ed its authority in this proceeding to a three member panel The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions and to adopt the recommended Order as modified 2 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Robinson Bus Service, Inc, Chicago, Il linois, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modi fled by substituting the following for paragraph 2(c) ' The Respondent has excepted to some of the judge s credibility find ings The Board s established policy is not to overrule an administrative law judge s credibility resolutions unless the clear preponderance 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 The judge found that in 1987 at least 30 percent of Respondents business was performed for what appear to be non public entities The Respondent contests the judge s finding and argues that it received less than 30 percent of its 1987 revenues from nonpublic sources Assuming arguendo that less than 30 percent of the Respondents business in 1987 came from nonpublic sources we find that the evidence is insufficient to establish that the Respondents ties with public entities were such as to preclude meaningful bargaining 2 On May 25 1988 the Respondent filed a motion to reopen the record in which it requested the Board to admit into evidence its pro posed Exh 61 According to evidence set forth in proposed Exh 61 the Chicago Board of Education for whom the Respondent provides bus services now requires that vendors bidding to provide these services have a substance abuse screening program for drivers On June 9 1988 the General Counsel filed an opposition to the Re spondent s motion On June 17 1988 the Respondent filed a reply to the General Counsels opposition again requesting the Board to admit the ex hibit and further requesting that proposed Exh 62 be admitted We grant the Respondents motion with respect to proposed Exh 61 We do so because of its prospective value in demonstrating changed cir cumstances and as it relates to our affirmative bargaining order Having admitted and con idered the exhibit we do not find that it affects our decision to assert jurisdiction over the Respondent in this case We deny the motion with respect to proposed Exh 62 because it is cumulative and contains hearsay "(c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply " Linda McCormick Esq, for the General Counsel Carl E Johnson and Douglas A Darch Esqs (Seyfarth Shaw Fairweather & Geraldson) of Chicago Illinois, for the Respondent Lisa B Moss Esq (Carmell Charone Widmer & Math ews Ltd), of Chicago, Illinois, for the Charging Party DECISION STATEMENT OF THE CASE ROBERT A GIANNASI Administrative Law Judge This case was tried on 10 and 11 December 1987 in Chi cago Illinois The complaint alleges that Respondent violated Section 8(a)(5) and ( 1) of the Act by failing to provide information to the Charging Party Union (the Union) during negotiations and by thereafter withdraw ing recognition from the Union The Respondent in its answer, questions whether the Board should exercise ju risdiction over it and denies the substantive allegations of the complaint The parties filed briefs which I have read and considered Based on the entire record including the testimony of the witnesses and my observation of the demeanor I make the following FINDINGS OF FACT I THE LABOR ORGANIZATION The Union is a labor organization within the meaning of Section 2(5) of the Act II THE OPERATIONS OF RESPONDENT Respondent a corporation with an office and place of business in Evanston Illinois is engaged in providing bus transportation for private and public entities Respondent admits that it annually purchases and receives more than $50,000 in goods services and materials from enterprises within the State of Illinois that met the Board s jurisdic tion on a basis other than indirect outflow or inflow Thus Respondent admits that it purchases sufficient goods to meet the Board s indirect inflow jurisdictional standards Respondent denies that it is an employer engaged in commerce within the meaning of Section 2(2) (6) and (7) of the Act However Respondent s essential position is that the Board should not take jurisdiction over its op erations because its relationship with public school boards and other governmental entities are so interwined that it does not have control over important elements of collective bargaining within the meaning of Res Care Inc 280 NLRB 670 (1986) This does not question the Board s statutory jurisdiction There is, for example no contention or evidence that Respondent a private con cern that employs its own work force is an entity ere ated by the State so as to constitute an arm of govern ment or an entity administered by persons who are re sponsible to the electorate or to public officials See 292 NLRB No 20 ROBINSON BUS SERVICE NLRB v Austin Developmental Center 606 F 2d 785, 789-790 (7th Cir 1979) Thus the question here is wheth er the Board should withhold its jurisdiction as a matter of discretion See Res Care, supra Austin Developmental Center, supra 789-790 I find that the Board has statutory jurisdiction in this case I shall consider separately whether the Board should exercise its jurisdiction III THE ALLEGED UNFAIR LABOR PRACTICES A The Facts On 1 October 1982, the Union won a Board conducted election by a vote of 235 to 147 with 22 challenged bal lots On 13 February 1986, after resolution of Respond ent s objections to the conduct of the election, the Board certified the Union as the exclusive bargaining represent ative in the following appropriate unit All full time and part time drivers employed at Re spondent s Emerson Street Evanston, 83rd Street Chicago 111th Street Chicago, and Division Street Chicago locations, but excluding office clerical em ployees maintenance employees, mechanics dis patchers Oak therapeutic lead driver, guards and supervisors as defined in the Act and all other em ployees On 3 April 1986, the parties met for their first negoti ating session Attorney Dennis Homerin was the chief spokesperson for Respondent Another attorney, Carl Johnson, also represented Respondent in bargaining The Union s chief negotiator was its president and business agent Elcosie Gresham The parties met again several times in the next few months and the Respondent sup plied information requested by the Union, including past bids and contracts for bus transportation from the Chica go Board of Education (CBOE), at that time Respond ent's major customer On 19 June 1986 Respondent wrote a letter to the Union informing it as follows [W]e learned this week that Robinson Bus Service will not receive any business from the Chicago Board of Education next year The 3 year Special Education Contract and the 1 year Options Con tract have been awarded to other companies This loss of business will entail a reduction in force of approximately 300 drivers Actually by the fall of 1986 Respondent was able to pick up some routes from the Chicago School Board The Respondent received three bus routes from the CBOE on the first day of school in September That number increased to 64 within a few months These routes were added pursuant to CBOE's practice of adding and deleting routes because of dissatisfaction with contractors, drivers or equipment The parties met again briefly on 1 July 1986 By this point the parties had agreed to many terms of a collec tive bargaining agreement Thus, the parties had agreed to clauses on discharge and discipline and holidays They also agreed on an extensive grievance and arbitration procedure Other matters agreed on included clauses 71 dealing with drug testing and the distribution of charter work The Respondent had also made proposals dealing with wages vacations hours of work insurance, jury pay, and funeral leave But none of these issues had been resolved The Respondents proposed management rights clause had likewise not been changed At the July 1 meeting Homerin confirmed that Re spondent had received no routes under the 1986-1987 CBOE contract Gresham responded by saying that, in these circumstances there was no point in meeting any further Homerin said that Respondent would be meeting with the School Board to appeal the rejection of its bid and that Homerin would let the Union know the results of that meeting On 3 July 1986 Homerin wrote a letter to the Union stating that its appeal had not been successful The Union did not receive this letter On 21 October 1986 the Unions lawyer wrote Ho merin a letter saying that we have had no correspond ence or contact from you since the 1 July meeting She inquired regarding the status of Respondents appeal and requested a resumption of negotiations The letter also requested information concerning work then being per formed by bargaining unit members On 29 October 1986 Homerin replied to the above letter-without mentioning his 3 July letter-stating that there had been no change in the CBOE bid situation and that the work being performed by the employees had not changed Subsequently, the requested information was provided The parties resumed negotiations on 22 December 1986 Homerin indicated that the Respondent wanted to consider modifications of its initial proposal so that it could be in a better position to successfully bid on future CBOE contracts The parties met again in January 1987 The Respond ent revised its earlier proposals on wages holidays vaca tion jury and funeral leave pay, and insurance The Union agreed to a number of concessions at this meeting Homerin testified that his wage and benefit proposal- which amounted to a pay cut-was formulated by him without consulting profit and loss statements or other fi nancial documents The parties next met on 12 February 1987 At this meeting Homerin lowered Respondents wage cut pro posal to 4 percent Gresham asked why Respondent needed a wage cut Homenn explained that Respondent needed a wage reduction to cut costs to successfully bid competitively for CBOE bus routes in the upcoming 1987 school year Gresham asked Homerin if he was pleading poverty and Homerin replied that he was not Homerin said that Respondent wanted to be competitive and wanted to be the Company we were before in terms of 400 and 500 buses Homerin denied saying that the Respondent needed a reduction in wages to stay in business 1 ' Gresham acknowledged that Homenn denied invoking an inability to pay but testified that Homenn stated that this was to cut costs so that we can remain competitive and also cut costs so that we can remain in business I do not accept Gresham s testimony insofar as it suggests that Continued 72 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Gresham then asked for documentation to justify Re spondent s proposed cuts Homerin replied that the re quest should be put in writing On 31 March 1987, counsel for the Union Lisa B Moss, wrote Homerin and requested that he provide counsel with all documents supporting Respondent's proposal that existing wages be reduced On 13 April 1987 Respondents counsel, Carl E John son, wrote Ms Moss as follows [B]ased on objective considerations, Robinson Bus Service has a good faith doubt that Local 241 enjoys the support of a majority of employees in the bargaining unit Accordingly we are unwilling to provide you with the documents requested in your most recent letter Respondent won the 1987-1988 CBOE school bus bid in conjunction with three other firms who with Re spondent formed a joint venture to administer the con tract Respondents share of the CBOE business was about 100 school bus routes Overall, in 1987-1988, the Respondent operated 260 school bus routes The CBOE contract requires Respondent to provide one busdriver per route plus a 10 percent standby figure Respondent s drivers during the 1987-1988 school year did not suffer the wage cuts proposed in bargaining B The Allegation that the Board Should Not Assert Jurisdiction Respondent contends that the controls imposed on it by the State of Illinois and its political subdivisions over its school board business preclude meaningful collective bargaining over all its business under the Board doctrine set forth in Res Care Inc 280 NLRB 670 (1986) In Res Care, the Board, refining its rule set forth in National Transportation Service, 240 NLRB 565 (1979) held that in cases in which an employer is alleged to have a close relationship with a political entity it would decline to assert jurisdiction when an employer lacks control over decisions affecting a core group of basic bargaining sub jects' so as to render meaningful bargaining impossible As the Board stated (at 674) Without denigrating the importance of other per sonnel related issues we hold that if an employer does not have the final say on the entire package of employee compensation i e wages and fringe bene fits, meaningful bargaining is not possible See also Long Stretch Youth Home, 280 NLRB 678 (1986) and Dynaelectron Corp, 286 NLRB 302 (1987) Although most of its business is performed for the CBOE and other public school districts Respondent is not exclusively a government contractor It also provides transportation for various private schools and private business concerns An operating statement of services provided during the years 1986 and 1987 (January Homerm said that the reduction was necessary for Respondent to remain in business Respondent had other business besides the Chicago School Board business and it is clear in context that Homerm s focus was Re spondent s effort to win back the CBOE business in a competitive bid through October) shows that 56 percent of Respondent s business in 1986 and 27 percent of its business in 1987 came from the CBOE In 1986 the clientele included Evanston School Dis trict 65 (8 15%), University of Chicago-Charters (4 35%), and Vehicle Lease (8 29%) Nonpublic reve nue sources in 1987 included Turner Construction (9 15%), University of Chicago (9 45%) and Winkels Rent' (13 03%) 2 The statement also reveals that Re spondent provided various charter services for the YMCA and other public and private schools and organi zations Thus, in 1987, at least 30 percent of Respond ent s business was performed for what appear to be non public entities 3 The Respondent never raised any issue of limitations on its bargaining authority until after the complaint was issued in this case Thus, it did not contest jurisdiction in the protracted representation case proceeding which lasted from 1982 to 1986 More importantly, it never raised the issue during the yearlong collective bargaining negotiations in 1986 and 1987, during which it was repre sented by two negotiators who were experienced labor lawyers During the negotiations Respondent never stated that it lacked the authority or control to make de cisions on any labor relations issues whether they be the core issues of wages and benefits or more incidental bar gaining issues Indeed the parties reached agreement on issues involving discharge and discipline of employees as well as grievances and final arbitration of disputes Even on the economic issues that basically separated the par ties Respondent never pleaded an inability to pay be cause of restraints by governmental agencies It was simply trying to keep costs down because of its desire to assure itself of more government contracts Finally the record contains Respondents own proposed collective bargaining agreement Respondent does not show how either its proposals or those of the Union were or would have been altered or curtailed by the alleged limitations of governmental authorities Respondents theoretical arguments in litigation about limitations on its authority to bargain must be viewed in light of this background of actual bargaining experience I do not believe that the limitations asserted by Respond ent in brief show persuasively that it could not bargain meaningfully on the core issues within the meaning of Res Care Turning first to the most important Res Care element, the Respondent in this case retains full control over wages, vacation, holiday and leave pay and other fringe benefits This is demonstrated by Respondents own con tract proposals during the 1986-1987 negotiations which included such matters as holidays, vacations and jury and funeral leave as well as wages So far as the record shows, there was no contention during those negotiations that Respondent was in any way limited by the CBOE or any other governmental entity Moreover, the CBOE 2 Winkels is apparently a subsidiary of the Respondent 9 In the 1986-1987 school year the Respondent suffered a large diminu tion in CBOE business That year Respondent operated a total of about 240 school bus routes 64 of which were from CBOE In 1987- 1988 the total was 260 school bus routes about 100 of which were from CBOE ROBINSON BUS SERVICE 73 contract-the chief restraint on wages alleged by Re spondent-governs only 27 percent of Respondents 1987 business There is no contention that wages are re strained for the rest of its business, except of course in the usual way any business is restrained An employer must keep costs down to obtain new business or lose it to competitors However, even the CBOE contract places no restraint on wages or any other fringe benefits The essential bid for CBOE business is based on a price per vehicle per daily round trip Presumably the Respond ent computes its bid-on an annual basis-based on all of its projected costs, including wages and benefits, and its anticipated profits There is no limitation on what Re spondent may bid or what it can pay its personnel Unlike the situation in Res Care itself, wherein the Board declined to assert jurisdiction, the Respondent here is not subjected to specific controls by a govern ment entity over wage and benefit levels For example the exempt entity does not require that Respondent submit for approval wage ranges and specific levels for various employee benefits Nor does the exempt entity set initial wages Thus, the situation here is more like Long Stretch Youth Home, supra, wherein the Board as serted jurisdiction because the exempt entity did not maintain wage guidelines and the contractor determined for itself what wages and benefits to pay It is true that, within the CBOE contract year, Re spondent may obtain special relief, that is, it can recover costs [that] may change during the period from the opening date of the bids to the end of the agreement period [and which] cannot be determined in ad vance In this event 60 percent of the per vehicle cost can be adjusted based on unanticipated wage costs It is this adjustment that is tailored to the Bureau of Labor Statistics cost of living figures There is no way of know ing whether bargaining unit wage costs are more or less than 60 percent of the per vehicle costs but the figure was presumably arrived at because wage costs-includ ing nonunit wage costs-are thought to approximate 60 percent of the total bid per vehicle Far from providing a restriction on Respondent-as it contends-the wage ad justment provides an advantage for a contractor who has seriously underestimated wage costs in its bid The short length of the contract-l year-provides further assur ance that Respondent will not be disadvantaged by unan ticipated increases in costs Interestingly enough the contract also provides for downward adjustments on the same basis as upward adjustments Significantly, howev er the Respondent never raised any CBOE or other public contract limitations when it was bargaining with the Union over wages in 1986 and 1987 Even when it requested a wage cut it did not do so as a reflection of its inability to pay Respondent never considered any wage or financial data before it made its proposal Indeed, Respondents chief negotiator Homenn testified that he never consulted CBOE officials before making his wage proposal He simply wanted to lower costs to assure that it would be able to submit a lower bid or per haps to retain a certain profit margin Yet Respondent obtained the 1987-1988 CBOE bid without cutting wages All of this demonstrates that the CBOE bidding requirements do not preclude meaningful bargaining on wages or benefits Respondents allegation that meaningful bargaining on core issues is precluded because various school boards control hours of operation is not persuasive All clients have particular needs and, if a contractor wants the buss ness, it must meet those needs The very nature of school bus transportation is such that the contractor must meet the time requirements of the client This is no different than performing services for a private concern that wants a bus to pick up its people at 7 a in and to drop them off at 4 p in Respondent has not demonstrated how these requirements preclude meaningful bargaining Indeed the Respondent's contract proposal to the Union during bargaining negotiations preserved its own discre tion on this issue The proposal reads as follows The hours of work shall be those hours assigned by the Com pany in accordance with the pay provisions of this Agreement Contrary to Respondents contention, it has complete and final authority to discipline and discharge its em ployees This is shown by its agreement during the bar gaining negotiations to a discipline and discharge clause as well as grievance procedure resulting in final and binding arbitration Respondent never contended in ne gotiations that state and local governments imposed con ditions on school bus drivers that infringed on meaning ful bargaining and the contention now that they did is completely without merit The evidence shows that Respondent has unfettered authority to discipline its drivers when they work on pri vate or industrial nonschool board routes Even when they work on school bus routes the evidence shows that school authorities or parents may complain about the conduct of a busdriver But that complaint is independ ently investigated by Respondents personnel department and appropriate action is taken by the Respondent For example Respondent may take a busdriver off a school bus route and put him or her on a private or industrial route Moreover, Respondent has a progressive discipli nary policy that it has developed and utilizes Respondent asserts that it always accepts the CBOE s account of disputed facts and terminates a driver if the CBOE official wants the driver terminated (Br 41) This is a distortion of the evidence In response to a leading question to the above effect Assistant Operations Man alter Don Jackson answered yes I do not accept this testimony as reliable or plausible Earlier Jackson had testified that his job entailed look[ing] at hiring of em ployees driver complaints, supervisory complaints resolving of such Later, Alfred Rudd the operations manager and Jackson s superior gave a more plausible answer Although, at one point in his testimony, Rudd seemed to confirm, in response to another leading ques tion, that he would not question a CBOE complaint, his more candid and reliable response was as follows Oh Well on school initiated cases when you say the decision we talk with the personnel I talk with Jerry Hype, I talk with the base manager if it is something that stays on my desk I will ask the driver to come in and then I also talk with the 74 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD person who made the complaint the principal or the whomever I try to cover everyone And then after that, the buck stops with me if it is my particu lar case if it is the base manager s case, it stops there they make a decision This view is confirmed by common sense and an anal ysis of the documentary evidence submitted by Respond ent relating to the termination and discipline of dnvers The documents themselves show only that school offs cials, such as a principal, or parents filed complaints with Respondent, which were acted on by Respondents per sonnel office The documents show that independent in vestigations were conducted by Respondent and they also show that Respondent makes a determination whether the employee could be rehired The documents also show that Respondent's progressive disciplinary policy must be followed For example, one driver who was accused by a teacher of smelling of alcohol was sus pended pending test results Another driver was pulled off the route and placed on standby These documents do not show that CBOE officials demanded or recom mended discharge or any particular discipline They simply made complaints and the Respondent conducted an independent investigation and took the appropriate disciplinary action The Respondent relies on the CBOE contract's provi sion that the Board has the right to remove the driver for the good of service or the welfare of the pupils It is true that CBOE officials may stop drivers to inspect their permits and licenses and aides may ride the buses to insure compliance with CBOE policies However main tenance of operational controls does not circumscribe the [e]mployer s ability to bargain over essential terms and conditions of employment, but merely serves to monitor contract compliance Dynaelectron Corp 286 NLRB 302 305 (1987) Thus even though school officials on the scene have the authority to remove a driver from a bus in an emergency situation they may not terminate the driver For example, in one instance, a principal who was traveling on Respondents bus transporting students from Chicago to Champaign reported that a driver on another bus appeared to be intoxicated The driver was removed and a teacher drove the bus the remainder of the trip There was no other representative of Respond ent present to take the action that was clearly required as a safety matter Nevertheless, even in this case the CBOE official who made the complaint did not demand that the driver be terminated He simply filed the com plaint His description obviously provided strong evi dence in support of the termination that followed But the incident shows that the removal mentioned in the contract is one that follows from the exigencies of the circumstances Termination is within the authority of the Respondent and in the appropriate case, where there is a factual issue, it is the Respondent-not the complaining party or the accused employee-that makes the ultimate decision on termination Similarly, some offenses sei forth in the Illinois statutes or regulations require the suspension of the license of a driver who is convicted of certain offenses, including driving under the influence of alcohol Respondent argues that this effectively terminates the individual by operation of law But this does not mean that the dis charge and disciplinary authority of the employer has been impeded in such a way as to preclude meaningful bargaining Nor does the CBOE contract restrict disci pline or discharge The CBOE contract provides that the vendor-Respondent-is to be penalized if a driver is convicted for drunk driving, if he drives with an expired license, if he fails to submit a written report within a day of an accident, or if he picks up unauthorized passengers or makes unauthorized stops Thus, more is at stake here than the driver s job the Respondent has its own interest in supervising its drivers so that they comply with State and school board requirements 4 The evidence also shows that Respondent supervises its own drivers For example its own supervisors grant all types of leaves of absence and assign particular routes to drivers through a bidding system determined by se niority It is true, as the Respondent alleges, that the CBOE contract provides for a minimum ratio of field su pervisors to vehicles in service However, this feature of the contract confirms Respondents authority over super vision Thus, the CBOE contract provides that bus con tractors must submit a responsibility statement outlining how such supervision will be conducted and emphasizes that field supervisors must be persons whose primary duties are street supervision of the vehicles and drivers for service under this agreement Indeed, the CBOE contract requires that Respondent provide at least the following supervision (1) spot checking operator per formances at specific pickup points and at schools, (2) ridding a specific run where problems have occurred (3) providing on the job inservice to operators (4) resolving problems between the vendor s personnel and school of ficials or parents, (5) assigning spare vehicles and con tinuing service where bus breakdowns occur, (6) provid mg training to drivers according to the bidder s safety training program Finally the CBOE contract specifical ly provides that the vendor is responsible for continu ous monitoring of vehicle operator performance in the field In these circumstances it is clear that the CBOE contract insists on very close supervision by Respondent and other bus contractors thus confirming Respondent s ability to engage in meaningful bargaining on this sub sect 5 4 Respondent also alleges that the Illinois Department of Human Rights once dismissed a charge because of the control by the CBOE over its personnel practices and operations (Br 13) This reference is mislead ing because it refers to that portion of the departments decision setting forth Respondents response to the allegation The conclusion by the de partment was on the merits namely that the complainant was not termi nated for alleged religious practices but for distributing sexually provoca live literature to an II year old student which resulted in parental com plaints In any event neither dictum nor an ultimate conclusion by this state administrative agency would bind the Labor Board which has the independent authority to analyze the relationship between Respondent and its clients based on the evidence presented in the record before it 5 Respondent also cites Illinois Administrative Code training require ments in connection with the issuance of busdnvers permits The code requires that busdrivers pass an initial training course offered by the State Board of Education and be given practical behind the wheel training by the employer The annual refresher course is to last 2 hours 1 hour of which is for first aid training Although the course is conducted by the Continued ROBINSON BUS SERVICE 75 Respondent also alleges that school boards and other governmental entities control its hiring so as to preclude meaningful bargaining I disagree The record shows that Respondent hires its own drivers It recruits them gener ally through ads in daily newspapers The applicants are interviewed and chosen by Respondents personnel who make the final hiring decision It is true that school bus drivers are required to have a drivers permit and to meet certain physical qualifications However, having a permit is not a prerequisite to being hired and Respond ent has not shown how these requirements by the State to insure safety in the transportation of school children would preclude meaningful collective bargaining or actu ally did so in 1986-1987 Nor do the school board contracts in evidence show sufficient limitations on hiring to preclude meaningful bargaining The CBOE contract requires that Respond ent provide CBOE with the name of each new and in cumbent driver and with a handbook that sets forth the drivers duties and responsibilities The handbook, how ever, is composed by Respondent Respondent makes much of its contention that drivers must actually file ap plications with Evanston School District 65 The 1987 Evanston contract does provide that the individual em ployees of the contractors such as Respondent are to submit an application with the school district, but there is nothing else in the contract that explains what if any thing, this school board does with the application More to the point the contract specifically provides that no employees of the successful contractor will in any way be deemed to be an employee of the Board of Education of School District 65 or entitled to any of its employee insurance benefits I have considered all of the evidence and the conten tions of Respondent and I find that Respondent has not shown that state and governmental agencies have such intrusive controls over its labor relations to preclude meaningful bargaining on core issues within the meaning of Res Care There is therefore no cogent reason why the Board should not assert jurisdiction in this case See in addition to cases cited earlier Rustman Bus Co 282 NLRB 152 (1986) Trailways Commuter Transit 284 NLRB 935 (1987), and Wolf Trap Foundation 287 NLRB 1040 (1988) C The Request for Information As shown above the Respondent asked the Union to agree to a pay cut during negotiations In support of this position Respondent relied only on a desire to remain competitive in securing the upcoming CBOE contract It specifically disavowed an inability to pay The Union re quested underlying documents and information in sup port of Respondents position and the Respondent re fused to supply them regional superintendent of the Board of Education through certified in structors the instructors that are chosen and certified are employees of private bus companies including Respondent The training requirements of the State Board of Education do not infringe on Respondent s supervi sory authority and are not sufficiently intrusive to prevent meaningful bargaining The General Counsel and the Union assert that Re spondent was required to provide the requested informa tion I disagree When an employer makes a claim of inability to pay in support of its bargaining proposals or in response to those of a union, the duty to bargain in good faith re quires it to provide requested financial information to substantiate its claim NLRB v Truitt Mfg Co, 351 U S 149 (1956) Although no magic words are required to express an inability to pay, the words and conduct must be specific enough to convey such a meaning Atlanta Hilton & Tower, 271 NLRB 1600, 1602 (1984) An em ployer s statement that it would not rather than could not pay is insufficient to trigger the obligation to pro vide supporting information Ibid See also NLRB v Harvstone Mfg Corp, 785 F 2d 570, 575-576 (7th Cir 1986) Thus, the Board requires something more than a mere assertion of competitive disadvantage on the part of the employer Recent Board cases have analyzed an em ployer's claims of competitive disadvantage to see if they amount to assertions of its own inability to pay higher labor costs rather than general assertions about the of fects of higher wages on profits or business See Nielsen Lithographing Co 279 NLRB 877 (1986), Coast Engrav ing Inc 282 NLRB 1236 (1986), American Model & Pat tern 277 NLRB 176 (1985) Accord NLRB v Harvstone, supra at 575-576 6 The General Counsel and the Union rely in part on the testimony of union official Elcosie Gresham which I have not accepted According to the credited testimony Respondent specifically denied that it was asserting its own inability to pay higher wages and its only assertions in support of the requested wage cut dealt with competi tive factors Respondent was interested in lowering costs in order to win the CBOE bus transportation bid for the upcoming year In this respect the Respondents chief 6 The General Counsel (Br 22-23) has misread the Board cases She argues that the Board equates protestations about the need to remain competitive with claims of inability to pay This is not the law The Gen eral Counsel cites a statement from the administrative law judge s deci sion in Coast Engraving supra in support of her view But the Board in that case specifically found it unnecessary to rely on the judge s analy sis In Coast Engraving the Board found an inability to pay based on the employers statement that it had to have a wage freeze in order to stay in business and recoup some bad losses they had [in] the first few months of the year (Id at fn 1 ) The Board also cited with approval Nielsen Lithographing supra wherein the Board found that the employer went beyond the expression of a mere unwillingness to continue paying the costs of its collective bargaining agreement by its words and conduct [it] conveyed an inability to pay within the meaning of Atlanta Hilton & Tower supra In Nielson the Board specifically relied on the employ er s statement that jobs would be lost and that the Company would go out of business unless economic concessions were made (Id at In 3 ) The General Counsel also cites American Model & Pattern supra for the proposition that the employer was found to have pleaded an inabil ity to pay when it told the union that it needed an across the board wage cut in order to remain competitive which was tantamount to claiming it could not afford existing wages and benefits (Br 23) Although the Ian guage in a part of the decision arguably supports the quoted proposition the facts in the case show how much more The employer offered to cut wages during the first year of the proposed contract because profits were down and the Company could not continue to pay existing rates and remain competitive (Id at 179) Thus American Model is not a case in which the employer pled only competitive disadvantage Indeed both Nielsen and Coast Engraving undercut the portion of Amert can Model on which the General Counsel relies 76 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD negotiator, Homerin was simply asserting a generality or a truism the lower Respondents costs, the lower its CBOE bid and the better chance it would have of suc cessfully obtaining the bid When presented with such generalities the union may decide to press the employer If the employer does not cross the line from generalities to specifics, the union may presume that the employer simply does not want to pay more in wages or benefits than it has offered and act accordingly If the employer does not get more specific and by word or conduct, as serts that it cannot pay more wages or benefits the union would be entitled to whatever information is being relied on or at least a statement in response to its request for information, that the employer is not relying on any such information Good faith requires at least that much See Truitt, supra 351 US at 152-153 (If an argument is important enough to present in the give and take of bar gaining, it is important enough to require some sort of proof of its accuracy ) In this case Respondent did not cross the line Accordingly I find that Respondents as sertions of competitive need were mere generalities or truisms and not sufficiently specific to require the pro duction of supporting data See Atlanta Hilton and NLRB v Harvstone supra 7 D The Withdrawal of Recognition As shown above, on 13 April 1987-after a year of bargaining, Respondent advised the Union that based on objective considerations it had a good faith doubt that the Union had the support of a majority of its em ployees and withdrew recognition No specific reasons were mentioned at the time of the withdrawal of recog nition, although at the hearing Respondent submitted evidence in support of its asserted good faith doubt of majority status The applicable law is as follows It is well settled that absent unusual circum stances a union enjoys an irrebuttable presumption of majority status during the first year following its certification After the certification year the pre sumption of majority status becomes rebuttable An employer who refused to bargain with an incumbent union may rebut the presumption of ma jority status by establishing either (1) that at the time of the refusal to bargain the union in fact did not enjoy majority status or (2) that the refusal was predicated on a good faith and reasonably grounded doubt, supported by objective considerations of the union s majority status [Footnote omitted ] Alexander Linn Hospital Assn 288 NLRB 103 107 (1988), quoting from Burger Pits Inc 273 NLRB 1001 (1984) 7 The fact that Respondent won at least part of the 1987-1988 CBOE bus transportation bid and did so without cutting wages raises questions about the good faith of Respondent s bargaining position in the last few bargaining sessions before it withdrew recognition However the Gener al Counsel did not allege a refusal to bargain violation in this case and I do not read the Board cases on information requests to permit an inquiry of this sort in the context of the allegations in this complaint In support of its withdrawal of recognition the Re spondent relies only on the second part of the formula- good faith doubt of majority status In order to succeed on this issue the Respondent must demonstrate not only that the facts indicating a lack of majority support exist but also that it was aware of those facts at the time of the withdrawal of recognition See NLRB v Gulfmont Hotel Co 362 F 2d 588, 589 (5th Cir 1966) The evi dence must be objective and qualify as clear, cogent and convincing Orion Corp v NLRB, 515 F 2d 81, 85 (7th Cir 1975) I find that Respondent has not satisfied its burden of showing that its withdrawal of recognition in April 1987 was predicated on a good faith and reason ably grounded doubt based on objective considerations of the Union s majority status In support of its position, the Respondent submitted evidence that, on 3 April 1986 Gresham sent a letter to Respondents employees notifying them of the Board s certification and its obligation to represent them Gresh am also wrote and had distributed a letter announcing a union meeting for 26 April 1986 Gresham confirmed that only 8 to 10 of Respondents employees attended this meeting Respondent also developed the following evidence that came to the attention of Respondents officials Alfred Henry, base manager of Respondents Division Street garage, testified that in late April or early May 1986-almost a year before the withdrawal of recogni tion- approximately 10 employees approached him and said that they did not feel that the union could con tribute or help them in any way Henry was also told by some drivers-only one of whom he could identify by name-that only a few Division Street drivers at tended the 26 April 1986 union meeting Assistant Oper ations Manager Jackson testified that, in the summer of 1986 two employees approached him on union mat ters One Carol Robinson simply asked him about the status of negotiations and in response to a question by Jackson, stated that the Union had not yet to her knowl edge appointed stewards The other Otis White, told Jackson that he thought at that point there was not strong support for the union, and that since so many of the employees were not around at the time of the vote, he thought that was possibly the reason for that On cross examination Jackson conceded that the employees did not say that they did not want to be represented by the Union No other official of Respondent testified to facts within the Respondents knowledge which were relied on in withdrawing recognition However, Respondent did submit in evidence a list of employees who worked for Respondent at the time of the election in 1982 It also elicited testimony from Jackson that as of last summer -actually the summer of 1986-he compared that list to a printout of current drivers and found that somewhere around 30 percent of the drivers employed at the time of the election were still employed Respond ent did not submit the underlying printout even though it was still available and presumably within the possession of Respondent And there is no evidence that Respond ROBINSON BUS SERVICE 77 ent specifically relied on Jackson s assessment prior to the withdrawal of recognition Respondent also submitted a document prepared by Respondents director of personnel for this hearing at the request of counsel which showed that Respondent termi nated 1341 busdrivers from its list of employees from some time in 1983 to the end of 1986 The document does not show the number of hires, whether any of the terminated employees were rehired, or the total employ ee complement at any particular time Nor were any payroll lists submitted for any particular time It is appar ent from the record and the testimony of Jerome Heidt, Respondents director of personnel, that many names were purged from the list of employees because of the large diminution in business during the 1986-1987 school year However the record shows a significant increase in the 1987-1988 school year Heidt testified that Respond ent often kept employees on its lists in hopes that we will get business and they will come back In its brief the Respondent lists other factors that caused the Company to doubt the Union s majority status (Br 23) The brief states as follows Gresham never paid any visits to Company ter minals (Tr 40) The Union was wholly unprepared at the April 3 1986 opening session (Tr 100) and had no idea what the Company s drivers wanted None of the Company s drivers asked about, partici pated in, observed or played any apparent role in negotiations (Tr 98) The Union also excluded Company drivers from its 26 member Executive Board (Tr 40) Additionally, the Union never ap pointed any stewards to apprise drivers of the nego tiations or process their complaints (Tr 208-209) Respondents brief overstates the evidence For exam ple, Respondent cites to the testimony of union official Elcosie Gresham who testified, very rarely do I get out to visit any specific spots other than taking care of busi ness He did testify, however, that he maintained con tact with Respondents employees by telephone Gresh am also testified that the Union s executive board does not include employees of Respondent but there was no evidence that such employees were excluded The as sertions about the Union s preparation for and the driv ers participation in bargaining came from the testimony of Respondents attorney Dennis Homerin He testified that the union negotiators had no proposals to submit at the first bargaining session on 3 April 1986 but that they asked for much information on Respondents policies in surance seniority lists and fringe benefits Homerin also testified that there were never any employees of Re spondent present at the negotiating sessions and he was never told why they were not present Actually Gresh am testified that the Union s policy is not to include em ployees on bargaining committees The assertion that the Union never appointed stewards was based on Jackson s testimony that he was told by driver Carol Robinson in the summer of 1986 that to the best of her knowledge" the Union had not appointed stewards There is no evi dence however, that union officials declined to process any employee complaints Respondent alleges that it was aware of and relied on evidence of turnover in the driver complement between the date of the election in October 1982 and April 1987 when it withdrew recognition on the latter date Turnov er itself is not sufficient to rebut the presumption of con tinuing majority status because there is no reason to con elude as a general matter that new employees reject the representation rights won by their predecessors See Cowles Publishing Co 280 NLRB 903, 913 (1986), and Zims IGA Foodliner v NLRB 495 F 2d 1131 1141 (7th Cir 1974), cert denied 419 U S 838 (1974) 8 However, even considering Respondents turnover evi dence with other alleged indicia of loss of majority I find that the turnover evidence in this case is not con vincing The list of terminations from 1983 to 1986 pre pared for the hearing in this case is incomplete This evi dence does not show the actual employee complement at any particular time and many of the terminated employ ees may have been rehired Jackson s testimony that, in the summer of 1986 only 30 percent of the drivers em ployed at the time of the election were still employed is more to the point However, underlying documents and payroll records that would have verified this testimonial evidence-albeit available-were not submitted Jack son s assessment of the employee complement was made almost a year before Respondent withdrew recognition from the Union There is no evidence that Respondent relied on Jackson s assessment when it withdrew recog nition Indeed the alleged turnover occurred within the period of litigation over Respondent's objections to the 1982 election, which were finally resolved in 1986 In all the circumstances including particularly the failure of Respondent to submit more reliable specific documentary evidence clearly available to it to support its turnover defense, I find that Respondents evidence of turnover is insufficient to support a good faith doubt of the Union s continuing majority Nor is such evidence sufficient to support a withdrawal of recognition when combined with other factors that I consider below The Respondents reliance on testimony that 10 drivers told management officials that the Union could not help them and one said that there was not strong support for the Union falls far short of showing a reasonably based doubt that the Union represented a majority of the em ployees The two employees who talked to Assistant Op erations Manager Jackson did not say they did not want the Union to represent them and Henry s testimony about the 10 employees who spoke to him merges the comments of all into a few conclusionary statements that are not only vague but do not establish that they did not s Respondents suggestion (Br 52) that in Station KKHI 284 NLRB 1339 (1987) the Board plainly retreated from any presumption of con tinned majority support is wrong In that case the Board reaffirmed the well established presumption of continuing majority even when new em ployees have been hired into the unit The Board did however abolish a more controversial and less established presumption namely that strike replacements supported the union in the same ratio as the sinking em ployees whom they replaced (Ibid) The instant case does not involve a stoke or striker replacements Thus this aspect of Buckley is inapplicable here Actually however portions of the Buckley decision support the result in this case since the Board found that the employer therein had not established a good faith doubt of majority (at 1343-1344) 78 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD want the Union to represent them To the extent that Respondent relies on what these employees told manage ment officials about the views of other employees, this is clearly hearsay evidence and unreliable in establishing doubt of majority Indeed there is no precise evidence as to how many employees were in the unit in April 1987 At the time of the election, however, there were 400 drivers in the unit and in 1987 there were at least 260 The views of 10 or 11 employees do not establish a good faith doubt of majority In any event, the conversa tions took place 1 year before the withdrawal of recogni tion and at the very beginning of negotiations Respond ent s asserted reliance on vague conversations with a small number of employees 1 year before the withdrawal of recognition is not sufficient objective evidence to sup port a good faith belief that the Union had lost majority status in April 1987 See Retired Persons Pharmacy v NLRB, 519 F 2d 486, 490 (2d Cir 1975) and Louisiana Pacific Corp, 283 NLRB 1079 1079-1080 and fns 6 and 7 (1987) Respondent also contends that the Union abandoned the employees in the unit The contention is not persua sive Respondent asserts that the Union was unprepared for bargaining at the first bargaining session However the evidence shows that the meeting was simply prelimi nary and at that and subsequent meetings the Union was seeking to reach a collective bargaining agreement on behalf of the employees it represented Nor did the Union's alleged capitulation at the end of the negotia tions demonstrate abandonment The Union was trying to obtain information to counter Respondents effort to cut wages Surely the Union cannot be faulted because it-like the Respondent-was trying to reach agreement even though the certification year was ending Respond ent s reliance on a 4 month hiatus in bargaining also does not demonstrate abandonment Although there was a hiatus in bargaining in the summer of 1986 the parties thereafter resumed bargaining The parties had already reached agreement on a number of issues and the Union had been an active participant in negotiations Bargaining broke off because Respondent failed to obtain the CBOE contract for the 1986-1987 school year Respondent was supposed to notify the Union of the status of its appeal of its unsuccessful bid The Union never received Respond ent s letter notifying it that the appeal had been rejected The Union thereafter asked for a status report and nego tiations resumed The Union unsuccessfully pressed for a contract during the last few months of bargaining The evidence also shows contrary to Respondents sugges tion, that Gresham did have contact with employees of Respondent and that the Union s failure to include em ployees on the bargaining committee was a reflection of the Union s policy Accordingly I cannot find that the Union abandoned its bargaining rights and obligations In further support of its contention of good faith doubt of continuing majority, Respondent also relies on other pieces of evidence such as poor attendance at a union meeting at the beginning of bargaining and the failure of the Union to present grievances and to appoint stewards Although in some circumstances these factors when taken together with other more significant factors may show a lack of majority support they do not support such a finding in this case Poor attendance at a union meeting-like the failure to pay dues or actually join a union-does not show that a majority of the employees in this case did not want the Union to represent them Likewise, the failure to present grievances or to appoint stewards is not remarkable in the circumstances of this case There was no evidence that employees had griev ances that the Union declined to present to Respondent There was, of course no existing contract the Union was seeking to obtain a first contract Although the par ties had tentatively agreed on a grievance arbitration clause, there is no evidence that the Respondent agreed to put this clause into effect before final agreement on an entire collective bargaining agreement Thus the need for stewards is not apparent Accordingly, I do not be lieve any of these other factors, including the alleged abandonment of representation rights by the Union sepa rately, or in conjunction with alleged turnover and state ments of employees justified the withdrawal of recogni tion Respondent relied heavily on Bellwood General Hospi tal v NLRB, 627 F 2d 98 (7th Cir 1980) in support of its position However, that case is clearly distinguishable and the differences highlight the validity of a contrary result in this case In Bellwood the parties were bargain ing for a contract renewal According to the court, the old contract expired on 30 April and the employer did not withdraw recognition until after the expiration of the contract Its withdrawal was based on many factors, in cluding lack of attendance at recent union meetings the lack of properly elected union officers, the lack of any grievance activity during a first contract and lack of union visits to the plant or use of bulletin boards Most of these factors take on added significance when the par ties are operating under an existing collective bargaining agreement because an employer obviously knows what is going on and a union has certain obligations to adminis ter an existing contract Moreover, the evidence of em ployee disaffection and turnover was more recent and more specific and detailed in Bellwood than in the instant case Finally the employer in Bellwood demonstrated its good faith by sending a letter to the union prior to the expiration of the contract asserting its doubt of continued majority but pleading to bargain until the issues of ma jority were resolved It was only after a union meeting subsequently confirmed a lack of union support that the employer actually withdrew recognition This case is different The evidence of turnover and disaffection was not precise and was based on conversa tions with only a small percentage of unit employees and their hearsay accounts The evidence of lack of union support was 11 months old and isolated at best The Union was not charged with failing to administer an ex isting contract And unlike in Bellwood the Respondent did not tell the Union of its concerns about an asserted lack of majority while still pledging to bargain and per mitting the Union to allay its doubt of majority status Indeed, its withdrawal of recognition was quite abrupt Finally, the sparsely attended union meeting here unlike ROBINSON BUS SERVICE 79 that in Bellwood, did not take place immediately before the withdrawal of recognition but 1 year before 9 I have considered all the Respondents asserted reasons for withdrawing recognition, both individually and in total, and I find that they do not support the finding that Respondent had a good faith doubt of the Union s major ity status when it withdrew recognition on 13 April 1987 See, in addition to cases cited above, Physicians & Surgeons Community Hospital, 231 NLRB 512, 514 (1977) enfd 577 F 2d 305 (5th Cir 1978), Flex Plastics, 262 NLRB 651, 656-658 (1982), enfd 726 F 2d 272 (6th Cir 1984), KEZI-TV, 286 NLRB 1396 (1987) CONCLUSIONS OF LAW 1 Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and the Board is justified in asserting jurisdiction over Respondent 2 The Union is, and, at all material times, was the ex clusive bargaining representative in the following appro priate unit All full time and part time drivers employed at Re spondent s Emerson Street Evanston, 83rd Street Chicago, 111th Street Chicago, and Division Street Chicago, locations, but excluding office clerical em ployees, maintenance employees, mechanics, dis patchers, Oak therapeutic lead driver, guards and supervisors as defined in the Act, and all other em ployees 3 By withdrawing recognition from the Union on 13 April 1987 Respondent violated Section 8(a)(5) and (1) of the Act 4 The above violations constitute unfair labor prac tices within the meaning of Section 2(6) and (7) of the Act 5 Respondent has not otherwise violated the Act THE REMEDY Having found that Respondent has engaged in an unfair labor practice I shall recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act On these findings of fact and conclusions of law and on the entire record I issue the following recommend edio ORDER representative of the employees in the following appro priate unit All full time and part time drivers employed at Re spondent s Emerson Street Evanston 83rd Street Chicago 111th Street Chicago, and Division Street Chicago, locations, but excluding office clerical em ployees, maintenance employees, mechanics, dis patchers, Oak therapeutic lead driver, guards and supervisors as defined in the Act, and all other em ployees (b) In any like or related manner interfering with, re straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Recognize and, on request, bargain with the Union as the exclusive representative of the employees in the above appropriate unit concerning terms and conditions of employment and if an understanding is reached, embody the understanding in a signed agreement (b) Post at its facilities in Evanston and Chicago, Illi nois, copies of the attached notice marked Appen dix "1 Copies of the notice, on forms provided by the Regional Director for Region 13, after being signed by the Respondents 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 cus tomarily posted Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered de faced, or covered by any other material (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps Respondent has taken to comply 11 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 Nation al 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 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD A n Agency of the United States Government The Respondent Robinson Bus Service, Inc, Chicago, Illinois its officers agents successors, and assigns shall 1 Cease and desist from (a) Refusing to recognize and bargain with Local 241 Amalgamated Transit Union AFL-CIO as the exclusive 9 I have read the other cases cited by Respondent and I find that they are factually distinguishable 10 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 The National Labor Relations Board has found that we violated the National Labor Relations Act and has or dered 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 protec tion 80 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD To choose not to engage in any of these protect ed concerted activities WE WILL NOT refuse to recognize and bargain with Local 241 Amalgamated Transit Union AFL-CIO as the exclusive representative of our employees in the fol lowing appropriate unit All full time and part time drivers employed at Re spondent s Emerson Street Evanston 83rd Street Chicago, 111th Street Chicago, and Division Street Chicago locations, but excluding office clerical em ployees, maintenance employees mechanics dis patchers, Oak therapeutic lead driver, guards and supervisors as defined in the Act and all other em ployees 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 recognize and on request, bargain with the Union and put in writing and sign any agreement reached on terms and conditions of employment for our employees in the bargaining unit ROBINSON Bus SERVICE INC