DURHAM SCHOOL SERVICES

National Labor Relations Board - Board Decisions

Sep 5, 2014

361 N.L.R.B. 407 (N.L.R.B. 2014)

DURHAM SCHOOL SERVICES, L.P. 407
Durham School Services, L.P. and International
Brotherhood of Teamsters, Local 570.
Cases 05–CA–088893, 05–CA–088894, 05–CA–
089702, and 05–CA–103688
September 5, 2014
DECISION AND ORDER
BY MEMBERS MISCIMARRA, JOHNSON, AND SCHIFFER
On March 28, 2014, Administrative Law Judge Arthur
J. Amchan issued the attached decision. The Respondent
filed exceptions and a supporting brief, the General
Counsel filed an answering brief, and the Respondent
filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order as modified and set
forth in full below.2
Background
The Respondent operates 64 bus routes for the trans-
portation of school children for the City of Baltimore.
As more fully set forth in the judge’s decision, on April
16, 2013, the Union set up a table on property adjacent to
the driveway in front of the Respondent’s facility from
which it distributed literature and spoke to employees as
they left the facility at the end of their morning shift. In
response to complaints that employees were parking their
cars on the grass adjacent to the driveway, Acting Safety
Supervisor Stacy Richards left the rear of the facility,
where she was normally stationed at that time of day to
check in returning buses and supervise drivers and aides
as they checked their buses to assure no children were
still on board, and asked the employees to move their
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
We agree with the judge’s finding that, by the conduct found unlaw-
ful in this case, the Respondent breached a settlement agreement in
Cases 05–CA–088893 et al. While the Respondent excepted to this
finding, the judge did not act on his finding and set the agreement
aside, and the General Counsel did not except to the judge’s failure to
set the agreement aside.
2 We shall modify the judge’s recommended Order to conform to
the Board’s standard remedial language, and we shall substitute a new
notice to conform to the Order as modified and in accordance with our
decision in Durham School Services, 360 NLRB 694 (2014).
cars. Richards then walked to the gate at the front of the
facility and remained there for approximately 30
minutes. During this time, she made notes on a clip-
board, talked on her cell phone, and walked back on sev-
eral occasions to the area where the Union had set up its
table.
Although not mentioned in the judge’s decision, it is
undisputed that, at some point that morning, employee
Martin Fox, who was returning from his morning bus
run, observed Richards in the driveway in front of the
Union table, with a clipboard and camera. After parking
his bus at the back of the facility, Fox walked to the Un-
ion table where he again observed Richards in the drive-
way, writing on her clipboard.
Discussion
We agree with the judge that the Respondent, by Rich-
ards, violated Section 8(a)(1) by engaging in surveillance
of its employees’ union activity. In so finding, we stress
that Richards was observing employees in a way that was
out of the ordinary. While Richards normally was sta-
tioned in the rear of the facility where she could oversee
the child checks, on this occasion she atypically posi-
tioned herself in front of the facility—a place that al-
lowed her to observe the union activity but did not allow
her to oversee the child checks. According to Richards’
own testimony, moreover, she “kept coming down [the
driveway],” and “went back and forth [down the drive-
way].”
We also affirm the judge’s finding that Richards un-
lawfully created the impression of surveillance by the
conduct set forth above. An employer unlawfully creates
the impression of surveillance by statements or other
conduct which, under all relevant circumstances, would
lead reasonable employees to assume that their union
activities have been placed under surveillance. See gen-
erally Metro One Loss Prevention Services, 356 NLRB
89, 102 (2010). Contrary to the Respondent’s argument,
a statement indicating that surveillance has occurred is
not the only manner in which an unlawful impression of
surveillance can be created. Instead, the Board has con-
sistently found that conduct alone, such as note taking
while employees are engaged in union activity, can cre-
ate an impression of surveillance as well. See Monfort of
Colorado, 298 NLRB 73, 85–86, 141 (1990), enfd. in
pert. part 965 F.2d 1538 (10th Cir. 1992) (supervisors
stood behind employees who were wearing union insig-
nia and took notes of an undisclosed nature while the
employees were working); Smithfield Packing Co., 344
NLRB 1, 3 (2004) (employer’s agents parked 15 to 20
feet away from handbillers for approximately 30 to 45
minutes and appeared to write something down when
361 NLRB No. 44

408 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
someone in a vehicle accepted a handbill), enfd. 447 F.3d
821 (D.C. Cir. 2006). Here, Fox observed Richards both
in front of the union table, and later in the driveway writ-
ing on her clipboard, all while employees were engaged
in union activity. As noted above, this conduct was out
of the ordinary for Richards and we find, for all the fore-
going reasons, that the Respondent thereby created the
impression of surveillance in violation of Section 8(a)(1).
Hospital Episcopal San Lucas, 319 NLRB 54, 59 (1995)
(respondent engaged in surveillance by looking out an
office window at picketing, asking about the picket signs
and the identity of the pickets, and writing names of the
picketing employees on a piece of paper, and created the
impression of surveillance by engaging in the above con-
duct in front of two employees).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Durham School Services, L.P., Rosedale,
Maryland, its officers, agents, successors, and assigns
shall
1. Cease and desist from
(a) Creating the impression that it is engaged in sur-
veillance of its employees’ union or other protected con-
certed activities.
(b) Placing employees under surveillance while they
engage in union or other protected concerted activities.
(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) Within 14 days after service by the Region, post at
its Rosedale, Maryland facility copies of the attached
notice marked “Appendix.”3 Copies of the notice, on
forms provided by the Regional Director for Region 5,
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 notice to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, the 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
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.”
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 April 16, 2013.
(b) 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.

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 create the impression that we are en-
gaged in surveillance of your union or other protected
concerted activities.
WE WILL NOT place you under surveillance while you
engage in union or other protected concerted activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
DURHAM SCHOOL SERVICES, L.P.

The Board’s decision can be found at
www.nlrb.gov/case/05-CA-088893 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 St,, N.W., Washington, D.C.
20570, or by calling (202) 273-1940.

DURHAM SCHOOL SERVICES 409

Pablo A. Godoy and Letitia F. Silas, Esqs., for the General
Counsel.
Charles P. Roberts, II (Constangy, Brooks & Smith, LLC), of
Winston-Salem, North Carolina, for the Respondent.
DECISION
STATEMENT OF THE CASE
ARTHUR J. AMCHAN, Administrative Law Judge. This case
was tried in Baltimore, Maryland, on February 11, 2024. The
Charging Party, Teamsters Local 570 filed the charge in Case
05–CA–103688 on April 23, 2013, and the General Counsel
issued the complaint on July 22, 2013. In that complaint the
General Counsel alleges that Respondent has failed to comply
with terms of a February 28, 2013 settlement agreement in
Cases 05–CA–088893, 05–CA–088894, and 05–CA–089702.
He seeks a finding that Respondent violated the Act as alleged
in Case 05–CA–103688 as a basis for filing for default judg-
ment in the other cases.
Case 05–CA–103688 concerns allegations that Respondent
by Stacey Richards, then an acting safety coordinator, engaged
in surveillance by photographing and taking notes of employees
engaged in union activities on April 16, 2013, and also created
the impression amongst employees that their union activities
were under surveillance.1 The events in this case occurred 3
days before the Union filed a representation petition on April
19. The majority of eligible voters voted against representation
by the Union on May 31, 2013. The Union filed objections to
conduct affecting the results of the election. These objections
were overruled by Administrative Law Judge Michael Rosas in
a recommended decision dated September 12, 2013. (G.C.
Exh. 3.) The Union filed exceptions to the recommended deci-
sion which is pending before the Board.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a nationwide company which provides trans-
portation services. It operates the facility here in the Rosedale
section of Baltimore, Maryland, for the transportation of school
students. Respondent derives gross revenues in excess of
1 Richards has since become Respondent’s “permanent” safety co-
ordinator. Respondent admits she is a statutory supervisor and was a
statutory supervisor in April 2013.
$250,000 annually from its operations at Rosedale. It also pur-
chases and receives goods and or services valued in excess of
$5000 from outside the State of Maryland at the Rosedale facil-
ity. Respondent admits, and I find, that it is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act and that the Union, Teamsters Local 570, is a
labor organization within the meaning of Section 2(5) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Respondent operates 64 bus routes for the transportation of
school children for the City of Baltimore. The bus drivers and
aides start work as early as 5 a.m.; some of them complete a
morning run between 9 and 10 a.m. Some of these employees
then go on break for several hours until their afternoon or even-
ing run begins.
On April 16, 2013, at about 9:30 a.m., three Teamster organ-
izers set up a table with coffee, donuts, and other materials on
private property bordering on the driveway which leads from
Philadelphia Road, a public street, to Respondent’s facility.
The owner of this property has given the Union permission to
use his property. The driveway is the only access into Re-
spondent’s facility. The Union set up such a table adjacent to
the driveway on several other occasions.
A little after 9:30 three employees stopped to talk to the un-
ion representatives. At least two, Linda Kees and Dale Hoff-
man, pulled part way onto the grass to the right of the driveway
as one faces north towards Philadelphia Road. The union table
was on the opposite side of the driveway. An employee, who is
a part owner of the land on the right side of the driveway com-
plained to Stacy Richards that the two cars would damage the
grassy area on which they were partially parked.
Richards at this time was at the rear or south side of Re-
spondent’s building supervising the drivers and aides in check-
ing their busses to assure no children were still on board. She
then walked past the building and down the driveway to where
Kees and Hoffman were parked. Richards told them to move
their vehicles and the two employees did so immediately.
Richards then walked back to a gate at the end of the drive-
way which is part way towards Respondent’s facility from
Philadelphia Road. She stayed there for as much as 10 minutes
talking to 2 other employees who were leaving the facility.
After approximately 10 minutes Richards walked back towards
the union table. Union Organizer Moses Jackson took a photo-
graph of Richards. Almost immediately, at about 9:40 a.m.,
Richards took 2 photographs of the union table, one of which
shows Jackson. No employees appear in these two pictures. I
conclude that no employees were at the table when Richards
took her photos. If Richards had wanted to document which
employees were at the union table, or wanted to coerce em-
ployees, she would have photographed them.2
2 There is no evidence that Richards took photographs other than
those that are in the record. I discredit the testimony of the General
Counsel’s witnesses who testified that they were at the table when
Richards photographed the organizers. For one thing, the photographs
taken by the Union of employees at the table were clearly taken at a

410 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
After taking her photos Richards walked back to the gate.
She had a clipboard in her hand. At the gate, Richards spoke
with somebody on her cellphone and made some notations on
her clipboard. The only photographs taken during this period
show Richards talking on her cellphone and making notes on
her clipboard while facing south, the direction away from the
union table. (GC Exh. 12 (a) and (b).) One would expect that
if Richards was staring back at the union table, the Union’s
photographs would show this. I thus find that the General
Counsel has not established that Richards kept the union rally
under constant surveillance while she stood at the gate.
Richards stayed at the gate for about 10–15 minutes Tr. 263–
266.3 On several occasions that morning she walked back to
the area where the union had set up its table. On these occa-
sions Richards observed employees near the union table. Sev-
eral of these employees, including those who testified at the
hearing, observed Richards on one of more of these occasions,
but not when she took her photos.
Sometime before 10:03 a.m. Richards spoke with Respond-
ent’s general manager, Daryl Owens. At 10:03 Owens emailed
corporate labor relations manager Cal Schmidt, as follows:

The teamsters have arrived with their hotdog cart and donuts.
Employees were lining the grass along the driveway and
Stacey who was in the parking lot asked the employees not to
park on the grass or block the driveway and one of the team-
sters took a photo of her. She in turn took one of them.

(GC Exh. 21.)

This email, in conjunction with the testimony that Richards
remained at the gate for some time after she took the photo-
graphs, establishes that the 9:40 timeframe for Richards’ photos
is likely to be accurate. It also establishes that she walked
down the driveway initially to prevent employees from parking
on the grass.
The February 28, 2013 settlement and motion for default
On February 28, 2013, the Regional Director for Region 5
approved an informal board settlement in Cases 05–CA–
088893, 05–CA–088894, and 05–CA–089702. The Region
issued a complaint in these cases on December 12, 2012, alleg-
different time of day, as evidenced by the sunshine, as opposed to the
cloudy conditions when a union organizer photographed Richards and
she photographed them.
3 Richards’ testimony is inconsistent as to why she remained at the
gate before and after photographing the union organizers. At Tr. 64 she
said she was at the gate talking to employees Shelly Clash and Laura
Klingonsmith before she took photographs of the union organizers. At
Tr. 266–267 she testified that the reason she remained near the gate for
10–15 minutes after she took the photos of the union table was that she
was talking to the same two employees. The photos taken by the Union
afterwards do not show anyone with Richards. (G.C. Exh. 12 (a) and
(b).) I conclude Richards was standing near the gate for 10–15 minutes
before taking the photos and 10–15 minutes afterwards.
Richards’ testimony is also inconsistent as to whether she saw em-
ployees at the union table after she took the photographs. (Tr. 78–79,
267.) I find that she did observe several employees talking to the union
organizers sometime after she took her photographs.
ing that Respondent, by General Manager Darryl Owens, inter-
rogated employees about their union activities on August 6,
2012; that Owens prohibited employees from talking about
management and other employees on August 6, that he interro-
gated employees again on August 29 and that he and Erik Ow-
ings, a regional manager, created the impression of surveillance
on September 6. In the settlement, Respondent agreed to post a
notice and comply with the terms of the notice. The Notice
contained promises not to violate the Act as alleged in the com-
plaint. With regard to surveillance the Notice stated, “WE
WILL NOT make it appear to you that we are watching out for
your activities on behalf of the International Brotherhood of
Teamsters, Local 570, or any other union.”
On March 8, 2013, Darryl Owens certified that the Notice
was posted on that date on a bulletin board to the left of the
dispatcher’s window and in a hallway. The Notices should
have still been in place on April 16, when the alleged violations
by Stacey Richards occurred. The settlement contained lan-
guage stating that in the event of noncompliance with any terms
of the settlement the Regional Director could reissue a com-
plaint to which Respondent waived its right to file an answer.
Analysis
The idea behind finding, “an impression of surveillance” as a
violation of Section 8(a)(1) of the Act is that employees should
be free to participate in union organizing campaigns without the
fear that members of management are peering over their shoul-
ders, taking note of who is involved in union activities, and in
what particular ways. An employer creates an impression of
surveillance by indicating that it is closely monitoring the de-
gree of an employee’s union involvement, Flexsteel Industries,
311 NLRB 257 (1993).
Nevertheless, it is not a violation of the Act for an employer
to merely observe open union activity, so long as its representa-
tives do not engage in behavior that is “out of the ordinary,”
Partylite Worldwide, Inc., 344 NLRB 1342 (2005); Arrow Au-
tomotive Industries, 258 NLRB 860 (1981), enfd. 679 F.2d. 875
(4th Cir. 1982).
I conclude that Respondent, by Stacy Richards, violated Sec-
tion 8(a)(1) of the Act. I do not base this conclusion on the first
trip Richards made up the driveway to tell employees to move
their cars off the grass. However, I find that Richards created
an impression of surveillance by standing by the gate to the
facility where the union table was visible for an extended peri-
od of time afterwards. I also find she created the impression of
surveillance by making repeated trips up the driveway ostensi-
bly to see whether any other employees were parking on the
grass.
Richards did not normally perform her duties at the gate.
She performed them much farther from the driveway where the
union rally was not visible. There was no need for Richards to
remain at the gate to protect the turf next to the driveway. She
could have put up a “Do Not Park on the Grass or on the
Driveway” sign at the gate. She could also have told employ-
ees not to park on or next to the driveway when they parked
their school busses.
I also conclude that Richards actually engaged in surveil-
lance. There was no need for her to approach the union table to

DURHAM SCHOOL SERVICES 411
protect the turf next to the driveway. There is also no evidence
that Richards was aware of the February 2013 settlement.
Thus, she is likely to be unaware that she should refrain from
keeping the union table under observation. Although no em-
ployees were at the union table when Richards took her photo-
graphs, employees were at the table later while she remained at
the gate and when she walked up the driveway on other occa-
sions. (Tr. 78–79.)
CONCLUSIONS OF LAW
Respondent, by Stacy Richards, violated Section 8(a)(1) of
the Act on April 16, 2013, by engaging in surveillance of em-
ployees’ union activities and by creating the impression that
their union activities were under surveillance.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall order it to cease and desist therefrom
and to take certain affirmative action designed to effectuate the
policies of the Act.
The General Counsel has asked that the Board set aside the
settlement in cases 05–CA–088893, 05–CA–088894, and 05–
CA–089702 and find Respondent in default of that settlement.
In addition to posting a notice relating to the allegations in case
05–CA–103688, the General Counsel seeks an order that the
notice be read to assembled employees by a responsible man-
agement official or a Board agent, that the Union be given ac-
cess to Respondent’s bulletin boards and other places where
Respondent customarily posts notices for employees, and that
Respondent be ordered to provide the Union an updated list of
the names and addresses of unit employees.
I decline to either set aside the settlement agreement or order
the Respondent to take the measures requested by the General
Counsel. The violations here were isolated, committed by a
low-level supervisor for a period of approximately 1/2 hour and
concerned open union activity. It has not been established that
Stacy Richards was acting at the direction of any higher level
official.4 In view of these factors, I conclude the enhanced
remedies are unwarranted.
The Board has stated that it may order extraordinary reme-
dies when the Respondent’s unfair labor practices are so nu-
merous, pervasive and outrageous that such remedies are neces-
sary to dissipate fully the coercive effects of the unfair labor
practices found, Federated Logistics & Operations, 340 NLRB
255, 256 (2003). I find that Respondent, by Stacey Richards
breached the February settlement agreement during the 60-day
notice posting period. However, I find that this violation, even
in conjunction with the violations alleged in the December
2012 complaint do not rise to the level which would warrant
any of the extraordinary remedies requested by the General
Counsel.
[Recommended Order omitted from publication.]

4 I find her denial that she told employee Martin Fox that Darryl
Owens had directed her to monitor the union activity as credible as
Fox’s testimony that she did so. (Tr. 217, 264.) Like Respondent at p.
23 of its brief, I do not conclude that Fox was being untruthful. I am,
however, uncertain that his recollection of a brief conversation that
occurred 9–10 months earlier is accurate.