DURHAM SCHOOL SERVICES, L.P.

DURHAM SCHOOL SERVICES, L.P. 1123 363 NLRB No. 129 Durham School Services, L.P. and Teamsters Local 853. Case 32–CA–165556 February 19, 2016 DECISION AND ORDER BY MEMBERS MISCIMARRA, HIROZAWA, AND MCFERRAN 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 filed by Teamsters Lo- cal 853 (the Union), the General Counsel issued the complaint on December 21, 2015, alleging that Durham School Services, L.P. (the Respondent) has violated Sec- tion 8(a)(5) and (1) of the Act by failing and refusing to recognize and bargain with the Union following the Un- ion’s certification in Case 32–RC–150090. (Official notice is taken of the record in the representation pro- ceeding as defined in the Board’s Rules and Regulations, Secs. 102.68 and 102.69(d). Frontier Hotel, 265 NLRB 343 (1982).) The Respondent filed an answer admitting in part and denying in part the allegations of the com- plaint, and asserting affirmative defenses. On January 11, 2016, the General Counsel filed a Mo- tion for Summary Judgment. On January 13, 2016, 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 motion in opposition to the motion for summary judgment. 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 contests the validity of the Union’s certification based on its objec- tions to the election in the representation proceeding, which alleged that the Union and its agents or representatives en- gaged in objectionable conduct and that the imposition and implementation of the Board’s revised representation case procedures, 79 Fed. Reg. 74308 (Dec. 15, 2014), violated the Respondent’s procedural due process rights and other- wise prejudiced the Respondent and frustrated employees’ Section 7 rights.1 1 In denying the Employer’s request for review of the Regional Di- rector’s Decision and Certification of Representative on the basis that it raised no substantial issues warranting review, the Board stated that it agreed with the Regional Director that the Employer untimely raised its argument challenging the validity of the Board’s revised representation case procedures. Durham School Services, L.P., Case 32–RC–150090, unpublished Order issued November 4, 2015, at 1 fn. 1. Member Miscimarra expressed his disagreement with these proce- dures in his dissent to the Final Rule. 79 Fed.Reg. 74308, at 77430– 74460 (Dec. 15, 2014) (dissenting views of Members Miscimarra and Johnson). He would have granted review in the underlying representa- 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 or 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). Accord- ingly, we grant the Motion for Summary Judgment.2 On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a Delaware cor- poration with offices and places of business in Hayward, California, and Livermore, California (the facilities), has been engaged in the business of school bus transportation services. In conducting its operations during the 12-month peri- od ending November 30, 2015, the Respondent derived gross revenues in excess of $250,000 and purchased and received at its facilities products, goods, and materials valued in excess of $5000 directly from points outside the State of California. 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 May 8, 2015, the Union was certified on July 29, 2015, as the exclusive collective-bargaining representative of the em- ployees in the following appropriate unit: All full-time and regular part-time routers, payroll de- partment employees, administrative employees, and dispatchers employed by the Employer at its facilities located at 27577 Industrial Boulevard, Suite A, Hay- ward, California and 72 Rickenbacker Circle, Suite A, tion proceeding on the basis that it raised substantial questions regard- ing the effect and application of the Board’s Final Rule. See Pulau Corp., 363 NLRB 96 (2015) (Member Miscimarra, dissenting). While Member Miscimarra remains of that view, he agrees that the Respond- ent 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, Member Miscimarra agrees with the decision to grant the Motion for Summary Judgment. 2 The Respondent’s motion in opposition to the Motion for Summary Judgment is therefore denied. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1124 Livermore, California; excluding employees represent- ed by a labor organization, professional employees, confidential employees, managers, guards, and supervi- sors as defined by the Act. The Union continues to be the exclusive collective- bargaining representative of the unit employees under Section 9(a) of the Act. B. Refusal to Bargain About November 5, 2015, the Union, by letter, re- quested that the Respondent recognize and bargain with the Union as the exclusive collective-bargaining repre- sentative of the unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. About November 24, 2015, the Respondent, by letter, declined to recognize and bargain with the Union as the exclusive collective-bargaining representative of the unit and since that time 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 un- lawful 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 November 24, 2015, to recognize and bargain with the Union as the exclusive collective-bargaining representative of the em- ployees in the appropriate unit, the Respondent has en- gaged in unfair labor practices affecting commerce with- in 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 bargain on request with the Union 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., Hayward and Livermore, California, its officers, agents, succes- sors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to recognize and bargain with Teamsters Local 853 as the exclusive collective- bargaining representative of the employees in the bar- gaining 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 exclu- sive collective-bargaining representative of the employ- ees in the following appropriate unit on terms and condi- tions of employment and, if an understanding is reached, embody the understanding in a signed agreement: All full-time and regular part-time routers, payroll de- partment employees, administrative employees, and dispatchers employed by the Employer at its facilities located at 27577 Industrial Boulevard, Suite A, Hay- ward, California and 72 Rickenbacker Circle, Suite A, Livermore, California; excluding employees represent- ed by a labor organization, professional employees, confidential employees, managers, guards, and supervi- sors as defined by the Act. (b) Within 14 days after service by the Region, post at its facilities in Hayward and Livermore, California, cop- ies of the attached notice marked “Appendix.”3 Copies of the notice, on forms provided by the Regional Director for Region 32, after being signed by the Respondent’s authorized representative, shall be posted by the Re- 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. If the Re- 3 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 SERVICE, L.P. 1125 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 November 24, 2015. (c) Within 21 days after service by the Region, file with the Regional Director for Region 32 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. 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 Teamsters Local 853 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, bargain with the Union and put in writing and sign any agreement reached on terms and conditions of employment for our employees in the fol- lowing bargaining unit: All full-time and regular part-time routers, payroll de- partment employees, administrative employees, and dispatchers employed by us at our facilities located at 27577 Industrial Boulevard, Suite A, Hayward, Cali- fornia and 72 Rickenbacker Circle, Suite A, Livermore, California; excluding employees represented by a labor organization, professional employees, confidential em- ployees, managers, 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/32–CA–165556 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Re- lations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.