Durham School Services, L.P.

361 NLRB No. 121 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Durham School Services, L.P. and International Brotherhood of Teamsters, Chauffeurs, Allied- Industrial and Service Warehousemen and Helpers Local Union No. 991. Case 15–CA– 129463 December 4, 2014 DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA AND SCHIFFER This is a refusal-to-bargain case in which the Re- spondent is contesting the Union’s certification as bar- gaining representative in the underlying representation proceeding. Pursuant to a charge and amended charges filed by International Brotherhood of Teamsters, Chauf- feurs, Allied-Industrial and Service Warehousemen and Helpers Local Union No. 991 (the Union) on May 28, and July 7 and 22, 2014, respectively, the General Coun- sel issued the complaint on July 23, 2014, alleging that the Respondent has violated Section 8(a)(5) and (1) of the Act by refusing the Union’s request to recognize and bargain following the Union’s certification in Case 15– RC–096096.1 (Official notice is taken of the “record” in the representation proceeding as defined in the Board’s Rules and Regulations, Secs. 102.68 and 102.69(g). Frontier Hotel, 265 NLRB 343 (1982).) The Respondent filed an answer, admitting in part and denying in part the allegations in the complaint, and asserting affirmative defenses. On August 7, 2014, the General Counsel filed a Mo- tion for Summary Judgment and Memorandum in Sup- port of Motion. On August 11, 2014, 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 Respondent filed a response. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Ruling on Motion for Summary Judgment The Respondent admits its refusal to bargain but con- tests the validity of the certification on the basis of its objections to conduct alleged to have affected the results of the election in the representation proceeding. Further, relying on NLRB v. Noel Canning, 134 S.Ct. 2550 (2014), the Respondent contends that the Board lacked a valid quorum at the time the petition was filed, when the election was held, and when the tally of ballots issued. 1 Reported at 360 NLRB No. 108 (2014). In addition, based on Laurel Baye of Lake Lanier, Inc. v. NLRB, 564 F.3d 469, 473 (D.C. Cir. 2009), the Respond- ent also argues that the Board’s prior delegation of deci- sional authority in representation cases to Regional Di- rectors lapsed when the Board lost a quorum. On these bases, the Respondent argues the Board must set aside the election, revoke the Union’s certification, and remand the representation case to the Regional Director with directions to conduct a new election.2 All representation issues raised by the Respondent were or could have been litigated in the prior representa- tion proceeding. The Respondent does not offer to ad- duce at a hearing any newly discovered and previously unavailable evidence, nor does it allege any special cir- cumstances that would require the Board to reexamine the decision made in the representation proceeding. We therefore find that the Respondent has not raised any representation issue that is properly litigable in this un- fair labor practice proceeding. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accordingly, we grant the Motion for Summary Judg- ment.3 On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent has been a cor- poration with offices and places of business in Milton, Pace, and Navarre, Florida (Respondent’s Milton facility, Respondent’s Pace facility, and Respondent’s Navarre facility, respectively; collectively, Respondent’s facili- ties), and has been engaged in providing schoolbus transportation services to children. Annually, the Respondent, in conducting its operations described above derives gross revenues in excess of $250,000 and purchases and receives at its Milton, Pace, and Navarre, Florida facilities goods valued in excess of $5000 directly from points outside the State of Florida. 2 These arguments were raised and rejected in the underlying repre- sentation proceeding. See Durham School Services, L.P., 361 NLRB No. 66 (2014) (Order Denying Motion for Reconsideration of the Board’s Decision and Certification of Representative). 3 The Respondent’s requests that the complaint be dismissed and a new election be directed are therefore denied. Member Miscimarra dissented in part from the Board’s Decision and Certification of Representative in the underlying representation pro- ceeding reported at 360 NLRB No. 108 (2014). He would have re- manded the case for a hearing on Objection 1. While Member Miscimarra remains of that view, he agrees that the Respondent has not presented any new matters that are properly litigable in this unfair labor practice case. See Pittsburgh Plate Glass Co. v. NLRB, supra. In light of this, and for institutional reasons, Member Miscimarra agrees with the decision to grant the motion for summary judgment. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the representation election held on February 22, 2013, the Union was certified on May 9, 2014, as the exclusive collective-bargaining representative of the em- ployees in the following appropriate unit: INCLUDING: All full-time and regular part-time school bus drivers and monitors employed by the Em- ployer at its Milton, Pace, and Navarre, Florida facili- ties. EXCLUDING: All office clerical employees, mainte- nance employees, mechanics, dispatchers, routers, the safety coordinator, managerial employees, professional employees, guards and supervisors as defined by the Act. The Union continues to be the exclusive collective- bargaining representative of the unit employees under Sec- tion 9(a) of the Act. B. Refusal to Bargain About May 12, 2014, the Union requested by letter that the Respondent recognize and bargain with it as the exclusive collective-bargaining representative of the unit. Since about May 12, 2014, the Respondent has failed and refused to recognize and bargain with the Union as the exclusive collective-bargaining representative of the unit. We find that this failure and refusal constitutes an unlaw- ful failure and refusal to recognize and bargain with the Union in violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By failing and refusing since about May 12, 2014, to recognize and bargain with the Union as the exclusive collective-bargaining representative of employees in the appropriate unit, the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has violated Section 8(a)(5) and (1) of the Act, we shall order it to cease and desist, to recognize and bargain on request with the Un- ion and, if an understanding is reached, to embody the understanding in a signed agreement. To ensure that the employees are accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of the certifi- cation as beginning the date the Respondent begins to bargain in good faith with the Union. Mar-Jac Poultry Co., 136 NLRB 785 (1962); accord Burnett Construction Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965); Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964). ORDER The National Labor Relations Board orders that the Respondent, Durham School Services, L.P., Milton, Pace, and Navarre, Florida, its officers, agents, succes- sors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to recognize and bargain with International Brotherhood of Teamsters, Chauffeurs, Allied-Industrial and Service Warehousemen and Help- ers Local Union No. 991 as the exclusive collective- bargaining representative of its employees in the bargain- ing unit. (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 with the Union as the exclusive collective-bargaining representative of the employees in the following appropriate unit on terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement: INCLUDING: All full-time and regular part-time school bus drivers and monitors employed by the Em- ployer at its Milton, Pace, and Navarre, Florida facili- ties. EXCLUDING: All office clerical employees, mainte- nance employees, mechanics, dispatchers, routers, the safety coordinator, managerial employees, professional employees, guards and supervisors as defined by the Act. (b) Within 14 days after service by the Region, post at its facilities in Milton, Pace, and Navarre, Florida, copies of the attached notice marked “Appendix.”4 Copies of the notice, on forms provided by the Regional Director for Region 15, after being signed by the Respondent’s authorized representative, shall be posted by the Re- 4 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.” DURHAM SCHOOL SERVICES, L.P. 3 spondent and maintained for 60 consecutive days in con- spicuous places, including all places where notices to employees are customarily posted. In addition to physi- cal 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 Re- spondent customarily 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 covered by any other material. In the event that, during the pendency of these proceedings, the Re- spondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall du- plicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since May 12, 2014. (c) Within 21 days after service by the Region, file with the Regional Director for Region 15 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. Dated, Washington, D.C. December 4, 2014 ______________________________________ Mark Gaston Pearce, Chairman ______________________________________ Philip A. Miscimarra, Member ______________________________________ Nancy Schiffer, Member (SEAL) NATIONAL LABOR RELATIONS BOARD 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 fail and refuse to recognize and bargain with International Brotherhood of Teamsters, Chauf- feurs, Allied-Industrial and Service Warehousemen and Helpers Local Union No. 991 as the exclusive collective- bargaining representative of the employees in the bar- gaining unit. 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, on request, recognize and bargain with the Union and put in writing and sign any agreement reached on terms and conditions of employment for our employ- ees in the following bargaining unit: INCLUDING: All full-time and regular part-time school bus drivers and monitors employed by us at our Milton, Pace, and Navarre, Florida facilities. EXCLUDING: All office clerical employees, mainte- nance employees, mechanics, dispatchers, routers, the safety coordinator, managerial employees, professional employees, guards and supervisors as defined by the Act. DURHAM SCHOOL SERVICES, L.P. The Board’s decision can be found at www.nlrb.gov/case/15-CA-129463 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1099 14th Street, N.W., Washington, D.C. 20570, or by calling (202) 273-1940.