Atlantic Express of L.A., Inc.

348 NLRB No. 40 Atlantic Express of L.A., Inc. and Chauffeurs, Sales Drivers, Warehousemen and Helpers, Local 572, International Brotherhood of Teamsters Atlantic Express of L.A., Inc., Atlantic Express of California, Inc. and Chauffeurs, Sales Drivers, Warehousemen and Helpers, Local 572, Interna- tional Brotherhood of Teamsters. Cases 21–CA– 37038, 21–CA–37096, and 21–CA–37119 September 29, 2006 DECISION AND ORDER BY MEMBERS SCHAUMBER, KIRSANOW AND WALSH The General Counsel seeks a default judgment in this case on the ground that the Respondents have failed to file an answer to the complaint. Upon charges and an amended charge filed by the Union on September 27, November 21, November 29, and December 12, 2005, the General Counsel issued the original Order Consoli- dating Cases, Consolidated Amended Complaint, and Amended Notice of Hearing on March 28, 2006, against Atlantic Express of L.A., Inc. (Respondent Los Angeles) and Atlantic Express of California, Inc. (Respondent Long Beach), collectively referred to as the Respondents, alleging that the Respondents have violated Section 8(a)(5) and (1) of the Act. The Respondents filed an answer to the complaint on April 20, 2006. Subsequently, on June 16, 2006, the Respondents en- tered into an informal settlement agreement, which was approved by the Regional Director on June 23, 2006. The settlement agreement required the Respondents to, among other things, (1) provide the Union with informa- tion it has requested since June 24, 2005, regarding an employee and the information requested in a union letter dated September 6, 2005; (2) bargain collectively and in good faith with the Union; and (3) post a notice to em- ployees regarding the complaint allegations. The settle- ment also provided that Approval of this Agreement by the Regional Director shall constitute withdrawal of any Complaint(s) and Notice of Hearing heretofore issued in the above cap- tioned case(s), as well as any answer(s) filed in re- sponse. On August 2, 2006, the Regional Director issued an Order revoking settlement agreement, amended consoli- dated amended complaint and second amended notice of hearing (the Order) on the ground that the Respondents had failed to comply with all of the terms of the settle- ment agreement. Specifically, the Order alleged that the Respondents failed to bargain collectively and in good faith with the Union by failing to provide the Union with requested information; that the Respondents failed to post a notice to employees, to have it signed by a respon- sible official, and to confirm this in writing to the Re- gional Director; and that the Respondents failed to notify the Regional Director in writing of the steps the Respon- dents had taken to comply with the settlement agreement. The Order provided that, pursuant to Sections 102.20 and 102.21 of the Board’s Rules and Regulations, the Respondents were required to file an answer to the amended consolidated amended complaint (the com- plaint) by August 16, 2006, and that unless the Respon- dents did so, the Board could find, pursuant to a motion for default judgment, that the allegations of the com- plaint were true. By letter dated August 17, 2006, coun- sel for the General Counsel advised the Respondents that unless they filed an answer by August 24, 2006, a motion for default judgment would be filed. The Respondents have not filed an answer to the August 2, 2006 com- plaint. On September 1, 2006, the General Counsel filed a Motion for Default Judgment with the Board. On Sep- tember 11, 2006, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Respondents filed no response. The allegations in the motion are therefore undisputed. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Ruling on Motion for Default Judgment Section 102.20 of the Board’s Rules and Regulations provides that the allegations in a complaint shall be deemed admitted if an answer is not filed within 14 days from service of the complaint, unless good cause is shown. In addition, the complaint affirmatively stated that unless an answer was filed by August 16, 2006, all the allegations in the complaint could be considered ad- mitted. Further, the undisputed allegations in the Gen- eral Counsel’s motion disclose that the Region, by letter dated August 17, 2006, notified the Respondents that unless an answer was received by August 24, 2006, a motion for default judgment would be filed. Under the terms of the settlement agreement, set forth above, the Respondents’ answer filed to the original March 28, 2006 complaint was withdrawn when the Re- gional Director approved the settlement agreement on June 23, 2006. Consequently, as that answer no longer existed, the Respondents were obligated to file an answer to the new complaint issued on August 2, 2006. As stated above, however, the Respondents have failed to file an answer to that complaint. Accordingly, in the absence of good cause being shown for the failure to file an answer, we grant the Gen- eral Counsel’s Motion for Default Judgment. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 On the entire record, the Board makes the fol- lowing FINDINGS OF FACT I. JURISDICTION At all material times, Respondent Los Angeles, a Cali- fornia corporation, with an office and facility located at 201 West Sotello Street, Los Angeles, California, and another facility located at 1100 North Alameda, Los An- geles, California, has been engaged in the business of school bus transportation. During the 12-month period ending November 30, 2005, a representative period, Respondent Los Angeles, in conducting its business operations described above, derived gross revenues in excess of $250,000 and pur- chased and received at its California facilities goods val- ued in excess of $50,000 directly from points outside the State of California. At all material times, Respondent Long Beach, a Cali- fornia corporation, with an office and facility located at 2450 Long Beach Boulevard, Long Beach, California, has been engaged in the business of school bus transpor- tation. During the 12-month period ending November 30, 2005, a representative period, Respondent Long Beach, in conducting its business operations described above, derived gross revenues in excess of $250,000 and pur- chased and received at its California facility goods val- ued in excess of $50,000 directly from points outside the State of California. We find that the Respondents are employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and that Chauffeurs, Sales Drivers, Ware- housemen and Helpers, Local 572, International Brother- hood of Teamsters (the Union) is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES At all material times, the following individuals held the positions set forth opposite their respective names and have been supervisors of Respondent Los Angeles within the meaning of Section 2(11) of the Act and agents of Respondent Los Angeles within the meaning of Section 2(13) of the Act: Carla Bruno Vice President of Operations David Lephzyan Operations Manager At all material times, the following individuals held the positions set forth opposite their respective names and have been supervisors of Respondent Long Beach within the meaning of Section 2(11) of the Act and agents of Respondent Long Beach within the meaning of Section 2(13) of the Act: Carla Bruno Vice President of Operations Devon Ausin Operations Manager The following employees of Respondent Los Angeles (the mechanic unit) constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All working lead mechanics, mechanics, mechanic helpers/fuelers, parts/countermen, parts helpers, and yard persons employed at 201 West Sotello Street, Los Angeles, California, and such other locations that may be designated by Respondent Los Angeles that provide home-to-school transportation services; excluding all office clerical employees, dispatchers, professional employees, drivers, monitors/attendants, guards, and supervisors as defined in the Act. The following employees of Respondent Los Angeles (the Respondent Los Angeles driver unit) constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. All school bus drivers and monitors employed at Re- spondent Los Angeles’ terminal located at 201 West Sotello Street, Los Angeles, California and such other locations that may be designated by Respondent Los Angeles, who provide home-to-school transportation services; excluding all maintenance employees, office clerical employees, dispatchers, professional employ- ees, guards, and supervisors as defined in the Act. The following employees of Respondent Long Beach (the Respondent Long Beach driver unit) constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. All school bus drivers and monitors employed at Re- spondent Long Beach’s terminal located at 2050 Long Beach Boulevard, Long Beach, California, and such other locations that may be designated by Respondent Long Beach, who provide home-to-school transporta- tion services; excluding all maintenance employees, of- fice clerical employees, dispatchers, professional em- ployees, guards, and supervisors as defined in the Act. Since at least September 10, 2002, the Union has been the designated exclusive collective-bargaining represen- tative of the mechanic unit, and since then the Union has been recognized as the representative by Respondent Los Angeles. This recognition has been embodied in succes- sive collective-bargaining agreements, the most recent of ATLANTIC EXPRESS OF L. A., INC. 3 which was effective from September 10, 2002, through September 9, 2005, and was extended on a day-to-day basis while the parties bargained for a new agreement. Since at least September 10, 2002, the Union has been the designated exclusive collective-bargaining represen- tative of the Respondent Los Angeles driver unit, and since then the Union has been recognized as the repre- sentative by Respondent Los Angeles. This recognition has been embodied in successive collective-bargaining agreements, the most recent of which is effective from September 10, 2005, through September 9, 2008. Since at least September 10, 2002, the Union has been the designated exclusive collective-bargaining represen- tative of the Respondent Long Beach driver unit, and since then the Union has been recognized as the repre- sentative by Respondent Long Beach. This recognition has been embodied in successive collective-bargaining agreements, the most recent of which is effective from September 10, 2005, through September 9, 2008. At all times since at least September 10, 2002, based on Section 9(a) of the Act, the Union has been the exclu- sive collective-bargaining representative of the mechanic unit, the Respondent Los Angeles driver unit, and the Respondent Long Beach driver unit. Since about June 24, 2005, the Union, by verbal re- quest, has requested that Respondent Los Angeles fur- nish it with the following information concerning em- ployee Michael Graves: (1) Originals of all Graves’ ADRs (Standard Daily Route Sheets) for the period February 7, 2005, through the present date. (2) Originals of all Graves’ DBRs (Daily Bus Route Reports) for the period February 7, 2005, through the present date. (3) Copies of all Graves’ time sheets and tach reports for the period June 19, 2005, through the present date. Since about September 6, 2005, the Union, by letter, has requested that Respondent Los Angeles furnish the Union with the following information in connection with a grievance filed by Graves: (1) Please identify the documents/factors used to determine hours worked by Michael Graves and other drivers. Please provide a copy of each docu- ment used to determine Graves’ work hours for the period February 7, 2005 to date. (2) Please indicate what factors, if any, are con- sidered in determining whether the work hours re- ported by a driver should be reduced by the Com- pany? If reported work hours are reduced, please indicate under what circumstances the work hours are reduced, and identify the individuals who have the authority to reduce the drivers’ reported work hours for purposes of paying wages. (3) If the Company determines that a reduction in the reported work hours is appropriate, please indi- cate whether the affected driver(s) are questioned about the work time he/she reported in order to con- firm that a reduction in time, and thus, pay, is appro- priate. (4) If drivers’ reported work hours are reduced please indicate whether the affected driver(s) are no- tified of the reduction in their work hours. (5) Please provide a copy of Graves’ scheduled work time for the period of February 7, 2005 to date. (6) Please provide a copy of all tach printouts for Graves for the period June 19, 2005 to date. (7) Please provide a copy of any written instruc- tions given to drivers regarding how they are sup- posed to record their hours of work and complete their ADRs. (8) Please indicate whether there are any differ- ences between the two yards regarding the manner in which drivers’ work time is calculated and paid. The information requested by the Union, as described above, is necessary for and relevant to the Union’s per- formance of its duties as the exclusive collective- bargaining representative of the Respondent Los Angeles driver unit. Since about June 24, 2005, Respondent Los Angeles has failed and refused to furnish the Union with the in- formation verbally requested by it, and since about Sep- tember 6, 2005, Respondent Los Angeles has failed and refused to furnish the Union with the additional informa- tion requested in its September 6, 2005 letter, as de- scribed above. At various times from August 2005 through January 2006, the Respondents and the Union met for the pur- poses of collective bargaining with respect to wages, hours, and other terms and conditions of employment in the mechanic unit, the Respondent Los Angeles driver unit, and the Respondent Long Beach driver unit. During the period described above, the Respondents engaged in the following conduct: (1) On or about August 26, 2005, Bruno arrived late for a bargaining session regarding both driver units; (2) On or about August 31, 2005, Bruno failed to attend a scheduled bargaining session regarding both driver units; DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 (3) On or about September 2, 2005, Bruno failed to attend a scheduled bargaining session regarding both driver units; (4) From about September 2, 2005 through about October 23, 2005, Bruno refused to schedule bar- gaining sessions regarding both driver units during times when Union agents could meet to bargain and insisted that bargaining sessions take place during weekends and evenings or not at all; (5) On or about October 23, 2005, Bruno arrived late for a bargaining session regarding both driver units; (6) On or about October 30, 2005, Bruno arrived late for a bargaining session regarding both driver units; (7) On or about November 2, 2005, Bruno ar- rived late for a bargaining session regarding the me- chanic unit; (8) On or about November 2, 2005, Bruno did not return from a break in bargaining regarding the mechanic unit after agreeing to return; (9) On or about November 3, 2005, Respondent Long Beach sent Ausin to a bargaining session re- garding both driver units even though Ausin was not authorized to bargain on behalf of Respondent Long Beach; (10) On or about November 3, 2005, Bruno ar- rived late for a bargaining session regarding both driver units and left the bargaining session after re- fusing to bargain with the Union; (11) On or about November 4, 2005, the Respon- dents sent a letter addressed to employees in the driver units and signed by Bruno, stating that the Union was refusing to bargain and that drivers would be receiving wage increases effective their next pay date; (12) On or about November 13, 2005, Bruno told two employee-members of the mechanic unit bar- gaining committee that the scheduled bargaining session on that date was cancelled, although it was not; (13) On or about November 13, 2005, Bruno ar- rived late for a bargaining session regarding both driver units; (14) On or about November 13, 2005, Bruno asked that the Los Angeles driver unit contract be negotiated separately from the Long Beach driver unit contract, although the Respondents and the Un- ion had agreed to bargain regarding both contracts simultaneously; (15) On or about November 15, 2005, Bruno ar- rived late for a bargaining session regarding both driver units; (16) On or about November 20, 2005, Bruno did not attend a scheduled bargaining session regarding both driver units; (17) On or about November 28, 2005, Bruno ar- rived late for a bargaining session; (18) On or about December 8, 2005, Bruno stated that she was refusing to bargain with the Union be- cause the Union had filed a charge with the National Labor Relations Board; (19) On or about January 5, 2006, Respondent Los Angeles, by Bruno, reneged on its last, best, and final offer on the mechanic unit contract. CONCLUSIONS OF LAW 1. By failing to provide the Union with the requested information described above, Respondent Los Angeles has failed and refused to bargain collectively and in good faith with the exclusive collective-bargaining representa- tive of its employees, in violation of Section 8(a)(5) and (1) of the Act. 2. By the conduct described above with regard to the parties’ collective-bargaining process, the Respondents have failed and refused to bargain collectively and in good faith with the exclusive collective-bargaining repre- sentative of their employees, in violation of Section 8(a)(5) and (1) of the Act. 3. The Respondents’ unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that the Respondents have engaged in certain unfair labor practices, we shall order them to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. Specifi- cally, having found that Respondent Los Angeles vio- lated Section 8(a)(5) and (1) by failing and refusing to provide the Union with information that is relevant and necessary to its role as the exclusive collective- bargaining representative of the unit employees, we shall order Respondent Los Angeles to furnish the Union with the information it requested on June 24 and September 6, 2005. In addition, having found that the Respondents have violated Section 8(a)(5) and (1) by failing and refusing to bargain collectively and in good faith with the exclusive collective-bargaining representative of their unit employ- ees, we shall order them to, on request, bargain in good faith with the Union. ATLANTIC EXPRESS OF L. A., INC. 5 ORDER The National Labor Relations Board orders that A. Respondent Atlantic Express of L.A., Inc., Los Angeles, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to bargain collectively and in good faith with Chauffeurs, Sales Drivers, Warehouse- men and Helpers, Local 572, International Brotherhood of Teamsters as the exclusive collective-bargaining rep- resentative of the employees in the following units: All working lead mechanics, mechanics, mechanic helpers/fuelers, parts/countermen, parts helpers, and yard persons employed at 201 West Sotello Street, Los Angeles, California, and such other locations that may be designated by Respondent Los Angeles that provide home-to-school transportation services; excluding all office clerical employees, dispatchers, professional employees, drivers, monitors/attendants, guards, and supervisors as defined in the Act. All school bus drivers and monitors employed at Re- spondent Los Angeles’ terminal located at 201 West Sotello Street, Los Angeles, California and such other locations that may be designated by Respondent Los Angeles, who provide home-to-school transportation services; excluding all maintenance employees, office clerical employees, dispatchers, professional employ- ees, guards, and supervisors as defined in the Act. (b) Failing and refusing to furnish the Union with in- formation that is necessary and relevant to the perform- ance of its duties as the exclusive collective-bargaining representative of the employees in the units set forth above. (c) 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) On request, bargain collectively and in good faith with the Union as the exclusive collective-bargaining representative of the employees in the units set forth above on terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement. (b) Provide the Union with the information it has re- quested since June 24, 2005, regarding employee Mi- chael Graves, and the information requested in the Un- ion’s letter dated September 6, 2005. (c) Within 14 days after service by the Region, post at its facilities located at 201 West Sotello Street, Los An- geles, California and 1100 North Alameda, Los Angeles, California, copies of the attached notice marked “Appen- dix A.”1 Copies of the notice, on forms provided by the Regional Director for Region 21, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 con- secutive 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 cov- ered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed its facilities involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current em- ployees and former employees employed by the Respon- dent at any time since June 24, 2005. (d) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to com- ply. B. Respondent Atlantic Express of California, Inc., Long Beach, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to bargain collectively and in good faith with Chauffeurs, Sales Drivers, Warehouse- men and Helpers, Local 572, International Brotherhood of Teamsters as the exclusive collective-bargaining rep- resentative of the employees in the following unit: All school bus drivers and monitors employed at Re- spondent Long Beach’s terminal located at 2050 Long Beach Boulevard, Long Beach, California, and such other locations that may be designated by Respondent Long Beach, who provide home-to-school transporta- tion services; excluding all maintenance employees, of- fice clerical employees, dispatchers, professional em- ployees, guards, and supervisors as defined in the Act. (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) On request, bargain collectively and in good faith with the Union as the exclusive collective-bargaining 1 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 representative of the unit employees on terms and condi- tions of employment and, if an understanding is reached, embody the understanding in a signed agreement. (b) Within 14 days after service by the Region, post at its facility located at 2450 Long Beach Boulevard, Long Beach, California, copies of the attached notice marked “Appendix B.”2 Copies of the notice, on forms provided by the Regional Director for Region 21, 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 Respon- dent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed its facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all cur- rent employees and former employees employed by the Respondent at any time since August 26, 2005. (c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to com- ply. APPENDIX A NOTICE TO EMPLOYEES POSTED BY ORDER OF THE National Labor Relations Board An Agency of the United States Government The National Labor Relations Board has found that we vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT fail and refuse to bargain collectively and in good faith with Chauffeurs, Sales Drivers, Ware- housemen and Helpers, Local 572, International Brother- 2 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” hood of Teamsters as the exclusive collective-bargaining representative of the employees in the following units: All working lead mechanics, mechanics, mechanic helpers/fuelers, parts/countermen, parts helpers, and yard persons employed at 201 West Sotello Street, Los Angeles, California, and such other locations that may be designated by the Employer that provide home-to- school transportation services; excluding all office clerical employees, dispatchers, professional employ- ees, drivers, monitors/attendants, guards, and supervi- sors as defined in the Act. All school bus drivers and monitors employed at Los Angeles’ terminal located at 201 West Sotello Street, Los Angeles, California and such other locations that may be designated by the Employer, who provide home-to-school transportation services; excluding all maintenance employees, office clerical employees, dis- patchers, professional employees, guards, and supervi- sors as defined in the Act. WE WILL NOT fail and refuse to furnish the Union with information that is necessary and relevant to the per- formance of its duties as the exclusive collective- bargaining representative of the employees in the units set forth above. 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, on request, bargain collectively and in good faith with the Union as the exclusive collective- bargaining representative of the employees in the units set forth above on terms and conditions of employment and, if an understanding is reached, embody the under- standing in a signed agreement. WE WILL provide the Union with the information it has requested since June 24, 2005, regarding employee Mi- chael Graves, and the information requested in the Un- ion’s letter dated September 6, 2005. ATLANTIC EXPRESS OF L.A., INC. ATLANTIC EXPRESS OF L. A., INC. 7 APPENDIX B NOTICE TO EMPLOYEES POSTED BY ORDER OF THE National Labor Relations Board An Agency of the United States Government The National Labor Relations Board has found that we vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT fail and refuse to bargain collectively and in good faith with Chauffeurs, Sales Drivers, Ware- housemen and Helpers, Local 572, International Brother- hood of Teamsters as the exclusive collective-bargaining representative of the employees in the following unit: All school bus drivers and monitors employed at Long Beach’s terminal located at 2050 Long Beach Boule- vard, Long Beach, California, and such other locations that may be designated by the Employer, who provide home-to-school transportation services; excluding all maintenance employees, office clerical employees, dis- patchers, professional employees, guards, and supervi- sors as defined in the Act. 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, on request, bargain collectively and in good faith with the Union as the exclusive collective- bargaining representative of the unit employees on terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agree- ment. ATLANTIC EXPRESS OF CALIFORNIA, INC.