First Student, Inc.

1090 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 359 NLRB No. 120 First Student, Inc. and General Teamsters Local Un- ion No. 174, affiliated with the International Brotherhood of Teamsters. Cases 19–CA–090217 and 19–RC–082833 May 9, 2013 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN PEARCE AND MEMBERS GRIFFIN AND BLOCK On February 4, 2013, Administrative Law Judge Joel P. Biblowitz issued the attached decision. The Respond- ent filed exceptions and a supporting brief, and the Act- ing General Counsel filed an answering brief. The National Labor Relations Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, find- ings,1 and conclusions,2 to amend the remedy, and to adopt the recommended Order as modified and set forth in full below.3 AMENDED CONCLUSIONS OF LAW 1. Replace the judge’s Conclusion of Law 3 with the following paragraph. “3. By withholding its annual wage increase to its tier 9 school bus drivers, the Respondent violated Section 8(a)(3) and (1) of the Act.” 2. Insert the following paragraph and renumber the subsequent paragraph. “4. By informing its employees that it was withholding the tier 9 wage increase because of the pending election, the Respondent violated Section 8(a)(1) of the Act.” 1 In adopting the judge’s finding that the Respondent violated Sec. 8(a)(3) and (1) of the Act by withholding its annual tier 9 wage increase during the critical period, we rely specifically on Lampi, LLC, 322 NLRB 502, 502–503 (1996), and Noah’s Bay Area Bagels, LLC, 331 NLRB 188, 189 (2000). We agree with the judge that, consistent with the holdings in these cases, the Respondent did not rebut the inference that it withheld the wage increase in order to discourage union support and induce employees to vote against the Union. In the absence of exceptions, we adopt pro forma the judge’s rec- ommendation to overrule objections alleging that the polling place conduct of employees Patty Bentley and Diane Rosenberg intimidated employees, thereby affecting the results of the election. 2 We shall amend the judge’s conclusions of law to clarify that the Respondent violated Sec. 8(a)(3) and (1) by withholding the tier 9 wage increase and independently violated Sec. 8(a)(1) by informing employ- ees that it was withholding the increase because of the pending election. 3 We shall order the Respondent to electronically post the notice pursuant to J. Picini Flooring, 356 NLRB 11 (2010). We shall also amend the judge’s remedy and recommended Order to include the standard remedial provisions for the violations found and to conform to the Board’s customary language. AMENDED REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, we shall order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. Specifically, having found that the Respondent violat- ed Section 8(a)(3) and (1) of the Act by withholding a wage increase from its tier 9 drivers, we shall order it to make its tier nine drivers whole for any loss of earnings and other benefits suffered as a result of the Respond- ent’s unlawful action against them.4 The amount due shall be computed as prescribed in Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest at the rate prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987), compounded daily as prescribed in Ken- tucky River Medical Center, 356 NLRB 6 (2010). In addition, having found that the Respondent engaged in objectionable conduct affecting the results of the elec- tion in Case 19–RC–082833, we shall order that the re- sults of the election held on September 18, 2012, be set aside and that a new election be held at a time to be es- tablished by the Regional Director. ORDER The Respondent, First Student, Inc., Seattle, Washing- ton, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Withholding wage increases in order to discourage union support and induce employees to vote against the Union. (b) Informing employees that it is withholding a wage increase because of the pending election. (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) Make all tier 9 employees whole for any loss of earnings and other benefits suffered as a result of the discrimination against them, in the manner set forth in the amended remedy section of this decision. (b) Compensate all tier 9 employees for the adverse tax consequences, if any, of receiving a lump-sum back- 4 The Respondent contends that it should not be required to com- pensate tier 9 employees for their losses because it already gave those employees a wage increase retroactive to the beginning of the 2012– 2013 school year. The Respondent shall be given the opportunity to demonstrate that it gave the retroactive increase, and made employees whole, in the compliance stage of these proceedings. See SNE Enter- prises, 347 NLRB 472, 473 fn. 7 (2006), enfd. 257 Fed. Appx. 642 (4th Cir. 2007). FIRST STUDENT, INC. 1091 pay award, and file a report with the Social Security Administration allocating the backpay award to the ap- propriate calendar quarters. (c) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place desig- nated by the Board or its agents, all payroll records, so- cial security payment records, timecards, personnel rec- ords and reports, and all other records, including an elec- tronic copy of such records if stored in electronic form, necessary to determine the amount of backpay due under the terms of this Order. (d) Within 14 days after service by the Region, post at its Seattle, Washington facility copies of the attached notice marked “Appendix.”5 Copies of the notice, on forms provided by the Regional Director for Region 19, after being signed by the Respondent's authorized repre- sentative, shall be posted by the Respondent and main- tained for 60 consecutive days in conspicuous places, including all places where notices to employees are cus- tomarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent custom- arily communicates with its employees by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or cov- ered by any other material. If the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current em- ployees and former employees employed by the Re- spondent at any time since August 15, 2012. (e) Within 21 days after service by the Region, file with the Regional Director for Region 19 a sworn certifi- cation of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. IT IS FURTHER ORDERED that the election held on Sep- tember 18, 2012, in Case 19–RC–082833, is set aside and that this case is severed and remanded to the Region- al Director for Region 19 for the purpose of conducting a new election. [Direction of Second Election omitted from publica- tion.] The Regional Director shall make the list available to all parties to the election. No extension of time to file 5 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.” the list shall be granted by the Regional Director except in extraordinary circumstances. Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed. APPENDIX 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 withhold wage increases from you in or- der to discourage union support and induce you to vote against General Teamsters Local Union No. 174, affiliat- ed with the International Brotherhood of Teamsters. WE WILL NOT inform you that we are withholding the wage increase because of the pending election. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. WE WILL make all tier 9 employees whole for any loss of earnings and other benefits resulting from the discrim- ination against them, plus interest. WE WILL compensate all tier 9 employees for the ad- verse tax consequences, if any, of receiving a lump-sum backpay award, and WE WILL file a report with the Social Security Administration allocating the backpay award to the appropriate calendar quarters. FIRST STUDENT, INC. Anne-Marie Skov, Esq., for the General Counsel. Danielle Franco-Malone, Esq. (Schwerin Campbell Barnard Iglitzin & Lavitt, LLP), counsel for Charging Party- Petitioner. Patrick Domholdt, Esq., counsel for the Respondent-Employer. DECISION STATEMENT OF THE CASE JOEL P. BIBLOWITZ, Administrative Law Judge. This case was heard by me on January 8, 2013, in Seattle, Washington. The consolidated complaint herein, which issued on November 1092 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 21, 2012,1 was based upon an unfair labor practice charge that was filed on September 27 by General Teamsters Local Union No. 174, affiliated with the International Brotherhood of Team- sters (the Union), which also filed objections on September 25. In addition, a report and recommendation on objections and direction of hearing was issued by the Board’s Regional Office on November 21. It is alleged that, in about August, First Stu- dent, Inc. (Respondent), withheld wage increases for its Seattle area school busdrivers at step 9 of its wage scale, and on about September 14, told its employees that the wage increases for its employees at step 9 of its wage scale were being withheld be- cause the employees had joined and assisted the Union, or en- gaged in other protected concerted activities. This was also the basis of the Union’s objections, which are also before me pur- suant to the report and recommendation on objections. The Union’s objections also allege that the election results should be overturned because “Anti-Union advocates physically and verbally intimidated voters at the polling place.” This objection is not alleged as an unfair labor practice. I. JURISDICTION AND LABOR ORGANIZATION STATUS Respondent admits, and I find, that it has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union has been a labor organiza- tion within the meaning of Section 2(5) of the Act. II. THE FACTS On June 11, the Union filed a petition to represent all school bus drivers employed by the Respondent in Seattle, Washing- ton. On June 22, the Regional Director approved a Stipulated Election Agreement in the following unit: All full-time and regular part-time school bus drivers em- ployed by the Employer in Seattle, Washington; but excluding all other employees, office clerical employees, and guards and supervisors as defined in the Act. The tally of ballots at the election conducted on September 18 showed the following: Approximate number of eligible voters………………417 Void ballots…………………………………………… 2 Votes cast for Petitioner………………………………154 Votes cast against participating labor organization.. 168 Challenged ballots……………………………………….4 The challenged ballots are insufficient to affect the results of the election. On September 25 the Union filed timely objections to the election and to conduct allegedly affecting the results of the election. The objections were: 1. The Employer failed to give eligible voters raises they would normally have received, in violation of Section 8(a)(1)(3). 2. The Employer blamed the Union and the election for its un- lawful failure to give annual raises, in violation of Section 8(a)(1). 1 Unless stated otherwise, all dates referred to herein relate to the year 2012 3. Eligible voters were intimidated into not voting or voting against the Union. 4. Anti-Union advocates physically and verbally intimidated voters at the polling place. The Respondent has the contract to transport school children in the city of Seattle, and has done so for many years. Its pay scale has nine steps and drivers advance one step for each year that he/she is employed by the Respondent. The first eight steps have specific wage increases while the step 9 wage increase fluctuated from year to year depending on a number of factors, including the economic situation and Respondent’s contract with the city. Over the past 7 years, the step 9 drivers have received wage increases every year ranging from 25 to 45 cents hourly, and have received these wage increases prior to the beginning of the school year, shortly prior to September 1. There are currently 168 step 9 busdrivers in the unit. Prior to the beginning of the school year, the Respondent gave its step 1 through 8 school busdrivers the traditional hour- ly wage increase granted in the past. No wage increase was given to the step 9 drivers. Instead, they received the following letter from the Respondent: Seattle Driver Wage Increases We have received many questions from employees who are at the top of the current wage scale regarding why they did not get an increase in their pay at the start of this school year. The reason for this is because the company is prohibited by federal law from making unilateral changes to the current pay scale when there is a union election pending. We were unable to change the already existing top pay rate. Employees who were not at the top of the wage scale were advanced to the next step on the scale because those steps were already estab- lished. We apologize for this however, we want you to be in- formed of the reasons. We hope this answers any questions regarding the wage in- creases. Please see your manager if you should have any fur- ther questions and/or concerns. The remaining objection relates to certain actions by two employees during the election. Charles Martineau, employed by the Respondent as a standby driver, was the union observer at one of the election locations. He testified that during the morn- ing session of the election, two unit employees, school bus driver Patty Bentley, and special Ed driver Diane Rosenberg, came to vote and were disruptive to all those who were present in the room at the time. While in the voting area, in the pres- ence of other employees waiting to vote, they, initially refused to give the Board agent their names, marked their ballots open- ly, rather than doing so in the voting booth as they were in- structed to do by the Board agent, “slammed” their ballots into the ballot box and, in a loud voice, made derogatory and ob- scene comments about the Union, and said that the employees did not need the Union. Further, the Board agent had to ask them to leave the area on a number of occasions. During this period, there were from two to eight other voters in the room waiting to vote. FIRST STUDENT, INC. 1093 III. ANALYSIS It is alleged that the actions of Bentley and Rosenberg af- fected the results of the election. During the morning session at one of the election locations, with other voters present, they refused to give their names, made negative and obscene com- ments about the Union, marked their ballots with a No vote in full view of those present rather than voting in the voting booth as they were asked to do, and refused to leave the area when asked by the Board agent. I begin with the proposition that when the election results are close, as is true herein where the Union lost the election by 14 votes out of 322 ballots cast, the objections must be carefully scrutinized. Cambridge Tool & Mfg. Co., 316 NLRB 716 (1995); Colquest Energy, Inc. v. NLRB, 965 F.2d 116, 122 (6th Cir. 1992). In these situations, the initial inquiry is whether the allegedly objectionable state- ments were made by agents of either the union or the employer, or if they were made by a third party, not an agent of either party, and the burden of establishing an agency relationship is on the party asserting its existence. Millard Processing Ser- vices, 304 NLRB 770, 771 (1991). The Board has long held that it will not set aside an election based on third-party threats unless the objecting party establishes that the conduct was “so aggravated as to create a general atmosphere of fear and repris- al rendering a free election impossible.” Westwood Horizons Hotel, 270 NLRB 802, 803 (1984); Robert Orr-Sysco Food Services, 338 NLRB 614 (2002); Mastec North America, Inc., 356 NLRB 809 (2011). As there is no evidence that either Bentley or Rosenberg are agents of the Respondent, their actions are to be judged under the third-party standard as set forth in Westwood, supra. While their actions were clearly obnoxious, rude and childlike, they did not reach the level of being so serious as to create a general atmosphere of fear and coercion. NLRB v. Precision Indoor Comfort, Inc., 456 F.3d 636 (6th Cir. 2006). I therefore recom- mend that Objections 3 and 4 be overruled. As regards Objections 1 and 2, and the complaint allegations that the Respondent violated Section 8(a)(1) and (3) of the Act by not granting the wage increase to its step 9 drivers, and tell- ing them that it was withholding the increase because of the upcoming union election, the evidence establishes that in the past all drivers received yearly increases on or shortly prior to the beginning of the school year. Although the step 9 drivers did not receive a set wage increase each year, unlike the drivers at the lower levels who receive established wage increases yearly, they did receive an increase, ranging from 25 to 45 cents hourly from 2005 to 2012. Further, the Respondent’s explanation for the lack of an increase for the step 9 drivers was that Federal law prohibited them “. . . from making unilateral changes to the current pay scale when there is a union election pending.” That is clearly not the law. Rather, the law is that an employer must act in the same manner as if the union and an election were not in the picture. As the Board stated in Lampi, LLC, 322 NLRB 502 (1996): It is well established that the mere grant of benefits during the critical period is not, per se, grounds for setting aside an election. Rather, the critical inquiry is whether the benefits were granted for the purpose of influencing the employees’ vote in the election and were of a type reason- ably calculated to have that effect. As a general rule, an employer’s legal duty in deciding whether to grant bene- fits while a representation proceeding is pending is to de- cide that question precisely as it would if the union were not on the scene. In determining whether a grant of bene- fits is objectionable, the Board has drawn the inference that benefits that are granted during the critical period are coercive, but it has allowed the employer to rebut the in- ference by coming forward with an explanation, other than a pending election, for the timing of the grant or an- nouncement of such benefits. In Noah’s Bay Area Bagels, LLC, 331 NLRB 188, 189 (2000), the Board provided further guidance in these cases: Further, while an employer is not permitted to tell employees that it is withholding benefits because of a pending election, it may, in order to avoid creating the appearance of interfering with the election, tell employees that implementation of ex- pected benefits will be deferred until after the election- regardless of the outcome. Employers in these situations often allege that they are caught between the proverbial “rock and a hard place,” but that is not so. As the court stated in NLRB v. Otis Hospital, 545 F.2d 252, 255 (1st Cir. 1976): “ Neither granting nor withhold- ing a wage increase has been declared illegal per se. It becomes so only if the employer is found to be manipulating benefits in order to influence his employees’ decision during the union organizing campaign.” There can be no doubt that by withholding the wage increase for the step 9 drivers, and by blaming the Union for its failure to grant the increase, rather than by stating that they were defer- ring the increase until after the election, as stated by the Board in Noah’s, supra, the Respondent violated Section 8(a)(1) and (3) of the Act, and interfered with the employees’ free choice in the election. Dorn Transportation Co., 168 NLRB 457 (1967); Gates Rubber Co., 182 NLRB 95 (1970). Accordingly, I rec- ommend that Objections 1 and 2 be sustained, that the election conducted on September 18, 2012, be set aside, and that a new election be held. CONCLUSIONS OF LAW 1. The Respondent has been an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is, and has been, a labor organization within the meaning of Section 2(5) of the Act. 3. By withholding its annual wage increase to its step 9 school bus drivers, and blaming it on the pending union elec- tion, the Respondent violated Section 8(a)(1) and (3) of the Act. 4. Based upon the Respondent’s actions described above, I recommend that the Union’s Objections 1 and 2 be sustained, the election conducted on September 18, 2012, be set aside, and a new election be conducted. THE REMEDY Having found that the Respondent has violated Section 8(a)(1) and (3) of the Act and has interfered with the employ- 1094 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ees’ free choice in the election conducted on September 18, 2012, in addition to recommending that the election be set aside and that a new election be conducted, I recommend that the Respondent be ordered to reimburse all of its step 9 school busdrivers for the losses that they suffered as a result of its decision to withhold their yearly wage increase effective in about mid August 2012, if they have not already done so,2 and 2 At the conclusion of the hearing herein, Respondent stated that about a week before this hearing it prepared a letter to be sent to all of the step 9 drivers in Seattle, telling them that the Respondent would be giving them the wage increase, retroactive to the middle of August, when the lower-level employees received their wage increase, and that they expected that the letter would be sent either the day of the hearing or the following day. to post the attached notice to that effect. The amount paid to each step 9 driver shall include interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987), com- pounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010). I shall also order the Respondent to file a special report with the Social Security Administration allocat- ing the employees’ back wages to the appropriate calendar quarters and to compensate the employees for any adverse in- come tax consequences of receiving these back wages in one lump-sum backpay awards covering periods longer than 1 year, Latino Express, Inc., 359 NLRB 518 (2012). [Recommended Order omitted from publication.]