Transdev Services, Inc.

National Labor Relations Board - Board Decisions

Jun 19, 2019

368 N.L.R.B. 12 (N.L.R.B. 2019)

368 NLRB No. 12
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 Un-
ion Local 689, associated with Amalgamated
Transit Union, AFL-CIO. Case 05–CA–195364
June 19, 2019
DECISION AND ORDER
BY MEMBERS MCFERRAN, KAPLAN, AND EMANUEL
This is a refusal-to-bargain case in which the Respond-
ent is contesting the Union’s certification as bargaining
representative in the underlying representation proceed-
ing. Pursuant to a charge filed on March 21, 2017,1 by
Amalgamated Transit Union Local 689, associated with
Amalgamated Transit Union, AFL–CIO (the Union), the
General Counsel issued the complaint on June 23, alleging
that Transdev Services, Inc. (the Respondent) has violated
Section 8(a)(5) and (1) of the National Labor Relations
Act by failing and refusing to recognize and bargain with
the Union following the Union’s certification in Case 05–
RC–137335.2 (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(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 assert-
ing affirmative defenses.
On July 10, the General Counsel filed a Motion for
Summary Judgment. On July 13, the Board issued an Or-
der 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.

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 Employer notified
the Regional Office that its legal name had changed to Transdev Ser-
vices, Inc., and the Regional Director issued a Supplemental Decision
and Certification of Representative reflecting the change. Members
Kaplan and Emanuel did not participate in the representation proceeding.
3 In its amended answer to the complaint, the Respondent also states
that it lacks sufficient knowledge to admit or deny that the Union is a
labor organization under Sec. 2(5) of the Act and therefore denies the
allegation. In the underlying representation proceeding, however, the
Respondent stipulated that the Union is a labor organization within the
meaning of Sec. 2(5). Therefore, we find that the Respondent’s denial
does not raise an issue warranting a hearing in this proceeding. American
Service & Supplies, 340 NLRB 239, 239 fn. 2 (2003).
The Respondent asserts as affirmative defenses, inter alia, that the
complaint fails to state a claim upon which relief can be granted; that the
complaint lacks specificity and therefore the Respondent has been denied
due process; and that its alleged conduct is permissible under Sec.
On the entire record in this case, the National Labor Re-
lations Board makes the following
Ruling on Motion for Summary Judgment
The Respondent denies that it has failed and refused to
bargain with the Union and contests the validity of the Un-
ion’s certification of representative on the basis of its con-
tentions, raised and rejected in the underlying representa-
tion proceeding, that the Board improperly included su-
pervisory positions in the unit and therefore that the unit
is inappropriate.3 Specifically, in denying complaint par-
agraph 5, which alleges the appropriateness of the unit and
the Union’s status as the exclusive collective-bargaining
representative, the Respondent “denies that the Board
properly certified the Charging Party as the exclusive col-
lective-bargaining representative of the Unit.” In addi-
tion, the Respondent denies the allegations in complaint
paragraph 6(d) that since about January 23, it has failed
and refused to bargain with the Union “on the grounds that
Paragraph 6(d) asserts that the Respondent had an obliga-
tion to bargain with the Charging Party.” Similarly, the
Respondent’s affirmative defenses and its response to the
Notice to Show Cause reiterate its position that the unit is
inappropriate.
All representation issues raised by the Respondent were
or could have been litigated in the prior representation pro-
ceeding. The Respondent does not offer to adduce at a
hearing any newly discovered or previously unavailable
evidence, nor does it allege any special circumstances 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 unfair labor practice proceed-
ing. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S.
146, 162 (1941). Thus, we grant the General Counsel’s
motion with respect to all representation issues.4
8(a)(1), (2), (3), (5), and 8(c). The Respondent has not offered any ex-
planation or evidence to support these bare assertions. Thus, we find that
these affirmative defenses do not preclude summary judgment in this
proceeding. See, e.g., George Washington University, 346 NLRB 155,
155 fn. 2 (2005), enfd. 2006 WL 4539237 (D.C. Cir. 2006); Circus Cir-
cus Hotel, 316 NLRB 1235, 1235 fn. 1 (1995).
4 In support of its argument that genuine issues of material fact exist
warranting a hearing, the Respondent relies on Garlock Equipment Co.
v. NLRB, 709 F.2d 722 (D.C. Cir. 1983). There, the court held that the
Board need not conduct a hearing before amending a certification to re-
flect the formal affiliation of the bargaining representative with another
union, but that the Board may not then summarily dispose of a subse-
quent refusal-to-bargain complaint without resolving factual issues
raised by the respondent concerning continuity of representation. How-
ever, the same court has found Garlock distinguishable from refusal-to-
bargain cases—as here—in which the respondent’s arguments have been
considered at a preelection hearing or the respondent has failed to meet
its substantial burden of producing “specific evidence which prima facie
would warrant setting aside the election.” Sitka Sound Seafoods, Inc. v.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
In its answer to the complaint, the Respondent also de-
nies, without explanation, the allegations set forth in par-
agraph 6(a) through (c). Those paragraphs allege that the
Union made three separate requests—on or about January
23, March 1, and March 24—asking the Respondent to
bargain with it as the exclusive collective-bargaining rep-
resentative of the unit employees. In its response to the
Notice to Show Cause, the Respondent denies “that the
Union requested bargaining in a timely or appropriate
manner.” The Respondent does not explain how the man-
ner of the Union’s requests was inappropriate. The Re-
spondent also contends that even if the complaint allega-
tions were true, the Union “slept on its rights” by delaying
the requests until January and March. We find no merit in
the Respondent’s contention. It is well established that af-
ter a union is certified as the exclusive collective-bargain-
ing representative of a bargaining unit, it enjoys an irre-
buttable presumption of majority status for a period of 1
year. Brooks v. NLRB, 348 U.S. 96, 103–104 (1954); Fall
River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27,
37–39 (1987). During that period, an employer’s refusal
to bargain with the certified union is per se an unfair labor
practice. NLRB v. Curtin Matheson Scientific, Inc., 494
U.S. 775, 777–778 (1990).
To the extent that the Respondent denies that it received
any of the Union’s requests for bargaining, a hearing is
necessary. We note that the Union sent its January 23 and
March 1 letters requesting bargaining by certified mail to
the Respondent’s address as shown on the participant’s list
for this proceeding. However, the Postal Service returned
the Union’s letters with notations stating: “Unable to de-
liver item, problem with address” and “Forward Expired.”
The record does not show whether the Union sent the same
letters by regular mail.5 The Respondent also summarily
denied that it received the Union’s March 24 email
transmitting its bargaining demand, although no record
evidence indicates that the email was undeliverable.
We find that a genuine issue of material fact exists
solely concerning the issue of whether the Respondent re-
ceived any of the Union’s requests to bargain. Accord-
ingly, we deny the General Counsel’s Motion for Sum-
mary Judgment in part and remand the proceeding to the
Regional Director for a hearing limited to that issue. We
grant the motion in all other respects.
ORDER
IT IS ORDERED that the General Counsel’s Motion for
Summary Judgment is granted in part and denied in part.
IT IS FURTHER ORDERED that this proceeding is re-
manded to the Regional Director for Region 5 for the pur-
pose of issuing a notice of hearing before an administra-
tive law judge, limiting such proceeding to the determina-
tion of whether the complaint should be dismissed on the
ground that the Respondent never received the Union’s re-
quests for bargaining.
Dated, Washington, D.C. June 19, 2019
______________________________________
Lauren McFerran, Member
______________________________________
Marvin E. Kaplan, Member
______________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD

NLRB, 206 F.3d 1175, 1182 (D.C. Cir. 2000) (citation omitted). Like the
D.C. Circuit in Sitka, we find this case distinguishable.
5 The Union sent its bargaining requests to the same address to which
the General Counsel successfully sent the complaint by certified mail.
The Board also served the Notice to Show Cause by regular mail at that
address, and the record does not show that it was returned. The Respond-
ent offers no explanation as to why there was a problem with its address
for the Union’s requests to bargain, but no similar problem for the Gen-
eral Counsel’s mailings to the same address.
Similarly, the Respondent complains that the July 13 Notice to Show
Cause was sent to its counsel by U.S. mail, rather than by email, and that
its counsel did not receive it until July 17, and it suggests that it was
prejudiced by the delay. However, the record shows that the Board
served the Notice to Show Cause on the Respondent’s counsel by regular
and certified mail, both of which constitute proper methods of service
under Sec. 102.4(c) of the Board’s Rules and Regulations. Therefore,
the date of service was July 13. See Sec. 102.3 of the Board’s Rules. In
any event, the Board granted the Respondent an extension of time until
August 1 to file its response.