First Student

National Labor Relations Board - Board Decisions

Jun 14, 2019

368 NLRB No. 9 (N.L.R.B. 2019)

368 NLRB No. 9
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.
First Student and Janeen Wallington. Case
14--CA--225201
June 14, 2019
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS MCFERRAN
AND KAPLAN
The General Counsel seeks a default judgment in this
case pursuant to the terms of an informal settlement agree-
ment. Janeen Wallington filed a charge and an amended
charge on August 6 and September 18, 2018,1 respec-
tively, alleging that the Respondent violated Section
8(a)(3) and (1) of the Act when it discharged her in re-
sponse to a request from Teamsters Local 610 (the Union).
Subsequently, the Respondent executed a bilateral in-
formal settlement agreement (the Agreement), which the
Regional Director for Region 14 approved on October 2.
Among other things, the Agreement required the Re-
spondent to post a Notice to Employees and to comply
with all provisions in the Notice. The Notice and the
Agreement required that the Respondent, among other
things, jointly and severally with the Union make the
Charging Party whole for any loss of earnings and other
benefits resulting from her discharge.2 The Notice also
required that the Respondent remove from its files all ref-
erences to her discharge and notify her in writing that this
has been done and that the discharge will not be used
against her in any way. Finally, the Agreement required
the Respondent to notify the Regional Director in writing
of what steps it has taken to comply with the Agreement.
The Agreement also contained the following provision:
The Charged Party agrees that in case of non-compli-
ance with any of the terms of this Settlement Agreement
by the Charged Party, and after 14 days’ notice from the
Regional Director of the National Labor Relations
Board of such non-compliance without remedy by the
Charged Party, the Regional Director will issue a Com-
plaint that includes the allegations covered by the Notice
to Employees, as identified above in the Scope of Agree-
ment section, as well as filing and service of the
charge(s), commerce facts necessary to establish Board
jurisdiction, labor organization status, appropriate bar-
gaining unit (if applicable), and any other allegations the
General Counsel would ordinarily plead to establish the
unfair labor practices. Thereafter, the General Counsel

1 All dates are in 2018 unless otherwise indicated.
may file a Motion for Default Judgment with the Board
on the allegations of the Complaint. The Charged Party
understands and agrees that all of the allegations of the
Complaint will be deemed admitted and that it will have
waived its right to file an Answer to such Complaint.
The only issue that the Charged Party may raise before
the Board will be whether it defaulted on the terms of
this Settlement Agreement. The General Counsel may
seek, and the Board may impose, a full remedy for each
unfair labor practice identified in the Notice to Employ-
ees. The Board may then, without necessity of trial or
any other proceeding, find all allegations of the Com-
plaint to be true and make findings of fact and conclu-
sions of law consistent with those allegations adverse to
the Charged Party on all issues raised by the pleadings.
The Board may then issue an Order providing a full rem-
edy for the violations found as is appropriate to remedy
such violations. The parties further agree that a U.S.
Court of Appeals Judgment may be entered enforcing
the Board Order ex parte, after service or attempted ser-
vice upon Charged Party at the last address provided to
the General Counsel.
By letter dated October 5, the Region’s compliance of-
ficer sent the Respondent’s counsel a copy of the con-
formed settlement agreement, with a cover letter explain-
ing the remedial actions the Respondent was required to
take to comply. On October 29 and November 8, the com-
pliance officer inquired about the status of the Respond-
ent’s compliance with the terms of the Agreement by
email with the Respondent’s counsel. Thereafter, by letter
dated November 29, the compliance officer notified the
Respondent’s counsel that the Respondent had failed to
comply with the terms of the Agreement and that unless
compliance was achieved within 14 days, the Regional Di-
rector would issue a complaint and possibly file a motion
for default judgment with the Board. Despite additional
communications between the compliance officer and the
Respondent’s counsel through January 11, 2019, the Re-
spondent failed to comply.
Accordingly, pursuant to the terms of the noncompli-
ance provision of the Agreement, on January 17, 2019, the
Regional Director issued a Complaint Based on Breach of
Affirmative Provisions of Settlement Agreement. On
February 1, 2019, the General Counsel filed a Motion for
Default Judgment with the Board, requesting that the
Board issue a Decision and Order against the Respondent
containing findings of fact and conclusions of law based
on the allegations in the Complaint, and that the Board
provide “a full remedy for each unfair labor practice
2 The Agreement indicates that the Respondent offered Wallington
reinstatement on September 13.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
alleged in the Complaint.” On February 14, 2019, 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 did not file a response.
The allegations in the motion are therefore undisputed.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.3
Ruling on Motion for Default Judgment
According to the uncontroverted allegations in the mo-
tion for default judgment, the Respondent has failed to
comply with the terms of the Agreement by not providing
the Region with proof of its compliance, including by fail-
ing to notify the Region (1) when it posted copies of the
Notice to Employees, (2) that it kept the Notice posted for
60 consecutive days, (3) that it expunged Wallington’s
discharge from its records, and (4) that it notified her in
writing that it would not use the discharge against her in
any way. Consequently, pursuant to the noncompliance
provision of the Agreement set forth above, we find that
all of the allegations in the complaint are true.4 Accord-
ingly, we grant the General Counsel’s Motion for Default
Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, First Student, has
been a corporation with an office and place of business
located in St. Charles, Missouri, and has been engaged in
the business of furnishing bus services, including trans-
portation services for school children.
During the 12-month period ending December 31,
2018, the Respondent, in conducting its operations de-
scribed above, purchased and received at its St. Charles,
Missouri facility goods valued in excess of $50,000 di-
rectly from points outside the State of Missouri.
In conducting its operations during the same 12-month
period, the Respondent derived gross revenues in excess
of $250,000.
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 Teamsters Local 610 is a labor organi-
zation within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICE
At all material times, the following individuals held the
positions set forth opposite their respective names and
have been supervisors of the Respondent within the

3 Member Emanuel is recused and took no part in the consideration
of this case.
4 We note, however, that the complaint erroneously alleges that the
Region approved the Agreement on October 10, rather than on October
meaning of Section 2(11) of the Act and agents of the Re-
spondent within the meaning of Section 2(13) of the Act:
Stephen Jones — Manager
Kristine Box — Safety Manager
About July 24, 2018, the Union requested that the Re-
spondent discharge its employee Janeen Wallington (the
Charging Party).
The Union engaged in the conduct described above be-
cause the Charging Party failed to pay dues when she was
under no obligation to do so and notwithstanding the Un-
ion’s failure to properly notify the Charging Party of her
obligation to pay dues.
About July 31, 2018, pursuant to the Union’s request,
the Respondent discharged the Charging Party.
By engaging in the conduct described above, the Re-
spondent has encouraged its employees to join the Union.
CONCLUSION OF LAW
By the conduct described above, the Respondent has
been discriminating in regard to the hire or tenure or terms
or conditions of employment of its employees, thereby en-
couraging membership in a labor organization in violation
of Section 8(a)(3) and (1) of the Act. The Respondent’s
unfair labor practice affects commerce within the meaning
of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, and in accordance with the
General Counsel’s request for a “full remedy” for the vio-
lation found, we shall order the Respondent to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act. Specifically, having
found that the Respondent violated Section 8(a)(3) and (1)
of the Act by terminating the employment of Janeen
Wallington, we shall order the Respondent, if it has not
already done so, to offer Wallington full reinstatement to
her former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to her senior-
ity or any other rights or privileges she previously en-
joyed. In addition, we shall order the Respondent, if it has
not already been done, to make Wallington whole for any
loss of earnings and other benefits suffered as a result of
the unlawful action against her. Backpay shall be com-
puted in accordance with F. W. Woolworth Co., 90 NLRB
289 (1950), with interest at the rate prescribed in New Ho-
rizons, 283 NLRB 1173 (1987), compounded daily as
2, 2018, as indicated by the signature page of the Agreement and the
Motion for Default Judgment.
FIRST STUDENT 3
prescribed in Kentucky River Medical Center, 356 NLRB
6 (2010). In accordance with our decision in King Soop-
ers, Inc., 364 NLRB No. 93 (2016), enfd. in relevant part,
859 F.3d 23 (D.C. Cir. 2017), we shall also order the Re-
spondent to compensate Wallington for any search-for-
work and interim employment expenses regardless of
whether those expenses exceed interim earnings. Search-
for-work and interim employment expenses shall be cal-
culated separately from taxable net backpay, with interest
at the rate prescribed in New Horizons, supra, com-
pounded daily as prescribed in Kentucky River Medical
Center, supra.
The Respondent additionally shall be ordered to remove
from its files any references to Wallington’s discharge and
to notify her in writing that this has been done and that the
discharge will not be used against her in any way. We
shall further order the Respondent, if it has not already
been done, to compensate Wallington for any adverse tax
consequences of receiving a lump-sum backpay award
and to file with the Regional Director for Region 14 a re-
port allocating the backpay award to the appropriate cal-
endar years. AdvoServ of New Jersey, Inc., 363 NLRB No.
143 (2016).
ORDER
The National Labor Relations Board orders that the Re-
spondent, First Student, St. Charles, Missouri, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Encouraging or discouraging membership in Team-
sters Local 610 by discharging or otherwise discriminat-
ing against employees in response to a union demand
when it has reasonable grounds for believing the demand
is unlawful.
(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) Within 14 days from the date of this Order, and to
the extent the Respondent has not already done so, offer
Janeen Wallington full reinstatement to her former job or,
if that job no longer exists, to a substantially equivalent
position, without prejudice to her seniority or any other
rights or privileges previously enjoyed.
(b) To the extent it has not already been done, make
Janeen Wallington whole for any loss of earnings and
other benefits suffered as a result of the discrimination
against her, in the manner set forth in the remedy section

5 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 National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
of this decision, plus reasonable search-for-work and in-
terim employment expenses.
(c) Compensate Janeen Wallington for the adverse tax
consequences, if any, of receiving a lump-sum backpay
award, and file with the Regional Director for Region 14,
within 21 days of the date the amount of backpay is fixed,
either by agreement or Board order, a report allocating the
backpay award to the appropriate calendar years.
(d) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharge of
Janeen Wallington, and within 3 days thereafter, notify her
in writing that this has been done and that the discharge
will not be used against her in any way.
(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, social
security payment records, timecards, personnel records
and reports, and all other records, including an electronic
copy of such records if stored in electronic form, neces-
sary to analyze the amount of backpay due under the terms
of this Order.
(f) Within 14 days after service by the Region, post at
its facility in St. Charles, Missouri, copies of the attached
notice marked “Appendix.”5 Copies of the notice, on
forms provided by the Regional Director for Region 14,
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, in-
cluding all places where notices to employees are custom-
arily posted. In addition to physical posting of paper no-
tices, 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. Rea-
sonable steps shall be taken by the Respondent 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 current employees and former em-
ployees employed by the Respondent at any time since
July 31, 2018.
(g) Within 21 days after service by the Region, file with
the Regional Director for Region 14 a sworn certification
of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to com-
ply.
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Dated, Washington, D.C. June 14, 2019
______________________________________
John F. Ring, Chairman
______________________________________
Lauren McFerran, Member
_____________________________________
Marvin E. Kaplan, 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 vi-
olated 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 ac-
tivities.
WE WILL NOT encourage or discourage your member-
ship in Teamsters Local 610 by discharging or otherwise
discriminating against you in response to a union demand
when we have reasonable grounds for believing that the
demand is unlawful.
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, within 14 days from the date of the Board’s
Order, offer Janeen Wallington immediate and full rein-
statement to her former job or, if that job no longer exists,
to a substantially equivalent position, without prejudice to
her seniority or any other rights or privileges enjoyed, to
the extent it has not already been done.
WE WILL make Janeen Wallington whole for any loss of
earnings and other benefits resulting from her discharge,
less any net interim earnings, plus interest, to the extent it
has not already been done, and WE WILL also make Janeen
Wallington whole for reasonable search-for-work and in-
terim employment expenses, plus interest.
WE WILL compensate Janeen Wallington for the adverse
tax consequences, if any, of receiving a lump-sum back-
pay award, and WE WILL file with the Regional Director
for Region 14, within 21 days of the date the amount of
backpay is fixed, either by agreement or Board order, a
report allocating the backpay award to the appropriate cal-
endar years.
WE WILL, within 14 days of the date of the Board’s Or-
der, remove from our files any reference to the unlawful
discharge of Janeen Wallington, and WE WILL, within 3
days thereafter, notify her in writing that this has been
done and that the unlawful discharge will not be used
against her in any way.
FIRST STUDENT
The Board’s decision can be found at
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decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.