Transdev Services, Inc.

368 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. Transdev Services, Inc. and Amalgamated Transit Union Local 689, Associated with Amalgamated Transit Union, AFL–CIO. Case 05–CA–195364 November 22, 2019 DECISION AND ORDER BY MEMBERS MCFERRAN, KAPLAN, AND EMANUEL This is a refusal-to-bargain case in which the Respondent is contesting the Union’s certifica- tion as bargaining representative in the underly- ing representation proceeding. Pursuant to a charge filed on March 21, 2017,1 by Amalga- mated Transit Union Local 689, associated with Amalgamated Transit Union, AFL–CIO (the Union), the General Counsel issued the com- plaint on June 23, alleging that Transdev Ser- vices, Inc. (the Respondent) has violated Sec- tion 8(a)(5) and (1) of the National Labor Rela- tions Act by failing and refusing to recognize and bargain with the Union following the Un- ion’s certification in Case 05–RC–137335.2 (Official notice is taken of the record in the rep- resentation proceeding 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 and an amended answer, admitting in part and denying in part the allegations of the complaint and asserting affirmative defenses. On July 10, the General Counsel filed a Motion for Summary Judgment. On June 19, 2019, the Board issued a Decision and Order granting the motion in part and denying the motion in part. Transdev Services, Inc., 368 NLRB No. 12 (2019). The Board found that a genuine issue of material fact existed solely as to the Respond- ent’s denial that it received any of the Union's three re- 1 All dates are 2017 unless otherwise indicated. 2 After the Board issued its Decision on Review in Veolia Transpor- tation Services, Inc., 363 NLRB No. 188 (2016), the Respondent noti- fied the Regional Office that its legal name had changed to Transdev Services, Inc., and the Regional Director issued a Supplemental Deci- sion and Certification of Representative reflecting the change. Members Kaplan and Emanuel did not participate in the representa- tion proceeding. quests to bargain and remanded the proceeding to the Regional Director for a hearing limited to that issue. On August 19, 2019, the Respondent filed a second amended answer. The General Counsel filed a second Motion for Summary Judgment on August 23, and on September 19, 2019, the Board issued an Order Transfer- ring the Proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Re- spondent 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 In Transdev Services, Inc., 368 NLRB No. 12 (2019), we granted summary judgment as to all representation issues in this case and found that all representation issues raised by the Respondent were or could have been liti- gated in the prior representation proceeding. Subsequent to that decision, the Respondent filed its second amended answer, which resolves the sole issue on which we initially denied summary judgment and re- manded for hearing. The Respondent now admits Para- graphs 6(a)–(d) of the complaint, which allege that the Union requested, and that the Respondent failed and re- fused, to bargain with the Union as the exclusive collec- tive-bargaining representative of the unit. As such, the Respondent’s second amended answer has eliminated the sole remaining issue of material fact. As the Respondent has not shown that newly discovered, relevant evidence is now available, we grant the General Counsel’s second Motion for Summary Judgment.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 an office and place of business in Hyatts- ville, Maryland, and has been engaged in the business of providing transportation services to private and govern- mental entities, including the Washington Metropolitan Area Transit Authority, also known as WMATA. In conducting its operations during the 12-month peri- od ending May 31, 2017, the Respondent derived gross revenues in excess of $250,000 and purchased and re- ceived at its Hyattsville, Maryland facility goods valued 3 In its response to the Notice to Show Cause, the Respondent de- nies that it has failed and refused to bargain with the Union and con- tests the validity of the Union’s certification of representative on the basis of its contentions, raised and rejected in the underlying represen- tation proceeding, that the Board improperly included supervisory positions in the unit and therefore that the unit is inappropriate. We rejected those arguments in Transdev Services, Inc., 368 NLRB No. 12 (2019). 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD in excess of $5000 directly from points outside the State of Maryland. 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 At all material times, Conrad F. Marshall has held the position of General Manager and has been a supervisor of the Respondent within the meaning of Section 2(11) of the Act and an agent of the Respondent within the meaning of Section 2(13) of the Act. The following employees of the Respondent (the unit) constitute a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act: All full-time and regular part-time road supervisors and lead road supervisors employed by the Employer at its facility currently located at 3201 Hubbard Road in Hy- attsville, Maryland; excluding all other employees, guards, and supervisors, as defined in the Act. Following the representation election held on July 1, 2016, the Board certified the Union as the exclusive col- lective-bargaining representative of the unit on July 19, 2016. On October 31, 2016, the Board denied the Respond- ent’s request for review of the Union’s certification. 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 January 23 and March 1, by letter, and March 24, 2017, by email, the Union requested that the Re- spondent bargain collectively with the Union as the ex- clusive collective-bargaining representative of the unit. The Respondent did not respond to the Union’s requests. Since about January 23, 2017, the Respondent has failed and refused to bargain with the Union as the exclusive collective-bargaining representative of the unit. We find that the Respondent’s conduct constitutes an unlawful 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 January 23, 2017, to rec- ognize and bargain with the Union as the exclusive col- lective-bargaining representative of the 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 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 on 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, Transdev Services, Inc., Hyattsville, Mary- land, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to recognize and bargain with Amalgamated Transit Union Local 689, associated with Amalgamated Transit Union, AFL–CIO (the Union) as the exclusive collective-bargaining representative of the employees in the bargaining 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 concerning terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agree- ment: All full-time and regular part-time road supervisors and lead road supervisors employed by the Employer at its facility currently located at 3201 Hubbard Road in Hy- attsville, Maryland; excluding all other employees, guards, and supervisors, as defined in the Act. (b) Within 14 days after service by the Region, post at its facility in Hyattsville, Maryland, copies of the at- TRANSERV SERVICES, INC. 3 tached notice marked “Appendix.”4 Copies of the notice, on forms provided by the Regional Director for Region 5, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous plac- es, including all places where notices to employees are customarily 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 customarily communicates with its employees by such means. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered 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 cur- rent employees and former employees employed by the Respondent at any time since January 23, 2017. (c) Within 21 days after service by the Region, file with the Regional Director for Region 5 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. November 22, 2019 ____________________________________ Lauren McFerran, Member ____________________________________ Marvin E. Kaplan, Member ____________________________________ William J. Emanuel, 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 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.” 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 Amalgamated Transit Union Local 689, associated with Amalgamated Transit Union, AFL–CIO (the Union) as the exclusive collective-bargaining representative of our employees in the bargaining 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 as the exclusive collective-bargaining representative of our employees in the following appropriate unit concerning terms and conditions of employment and, if an under- standing is reached, embody the understanding in a signed agreement: All full-time and regular part-time road supervisors and lead road supervisors employed by the Employer at its facility currently located at 3201 Hubbard Road in Hy- attsville, Maryland; excluding all other employees, guards, and supervisors, as defined in the Act. TRANSDEV SERVICES, INC. The Board’s decision can be found at www.nlrb.gov/case/05-CA-195364 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.