Durham School Services, L.P.

National Labor Relations Board - Board Decisions

Dec 4, 2014

361 NLRB No. 121 (N.L.R.B. 2014)

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 BOARD2
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.