Durham School Services

National Labor Relations Board - Administrative Judge Opinions

Feb 11, 2013

32-CA-077078 (N.L.R.B. Feb. 11, 2013)

JD(SF)–08–13
Campbell, CA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
SAN FRANCISCO BRANCH OFFICE
DIVISION OF JUDGES
DURHAM SCHOOL SERVICES, L.P.
and Case 32-CA-077078
FREIGHT, CONSTRUCTION AND GENERAL
DRIVERS, WAREHOUSEMEN & HELPERS-
TEAMSTERS UNION LOCAL NO. 287, a/w
INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, CHANGE TO WIN
DURHAM SCHOOL SERVICES, L.P.
Employer
and Case 32-RC-066466
FREIGHT, CONSTUCTION AND GENERAL
DRIVERS, WAREHOUSEMEN & HELPERS-
TEAMSTERS UNION LOCAL NO. 287, a/w
INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, CHANGE TO WIN
Petitioner
D. Criss Parker, Esq., Oakland, CA, for the
General Counsel.
David A. Rosenfeld, Esq., and Sarah Wright-
Schreiberg, Esq., Alameda, CA, for the Union/
Petitioner.
Stephen M. Astor, Esq., and Keith A. Sharp, Esq.,
Pasadena, CA, for the Respondent/Employer.
DECISION
Statement of the Case
Gregory Z. Meyerson, Administrative Law Judge. Pursuant to notice, I heard this
case in Oakland, California on September 18, 2012. This case was tried following the issuance
of a Complaint and Notice of Hearing (the complaint) by the Regional Director for Region 32 of
the National Labor Relations Board (the Board) on June 28, 2012. The complaint was based on
an unfair labor practice charge in Case 32-CA-077078 filed on March 20, 2012 by Freight,
Construction and General Drivers, Warehousemen & Helpers-Teamsters Union Local No. 287,
a/w International Brotherhood of Teamsters, Change to Win (the Union or the Petitioner). It is
alleged in the complaint that Durham School Services, L.P. (the Respondent, the Employer, the
JD(SF)–08–13
2
Company, or Durham) violated Section 8(a)(1) and (3) of the National Labor Relations Act (the
Act). The Respondent filed a timely answer to the complaint denying the commission of the
alleged unfair labor practices.1
Pursuant to a representation petition filed by the Petitioner in Case 32-RC-066466 on 5
October 11, 2011, and a Stipulated Election Agreement thereafter executed by the parties and
approved by the Regional Director on October 27, 2011, an election by secret ballot was
conducted on November 18, 2011 among a unit of the Employer’s employees. The Petitioner
received a majority of the valid votes counted in the November 18, 2011 election. However, the
Employer filed timely objections and, on February 7, 2012,2 an administrative law judge of the 10
National Labor Relations Board issued a Report on Objections recommending that the results of
the first election be set aside and a rerun election held. The parties thereafter agreed to set
aside the results of the first election and to hold a rerun election.
At the conclusion of the rerun election, which was held on March 9, the Tally of Ballots 15
indicated that the six challenged ballots were sufficient to affect the results of the election. On
May 24, the Regional Director approved the parties’ Stipulation on Challenged Ballots, and,
after two resolved challenges were opened and counted on May 30, a Revised Tally of Ballots
was prepared and made available to the parties, which showed that of approximately 115
eligible voters, 108 cast ballots, of which 52 were cast for the Petitioner and 54 were cast 20
against the Petitioner. There were 2 challenged ballots, a number insufficient to affect the
results of the election.
On March 16, the Petitioner filed timely objections to the results of the election. On July
5, the Regional Director issued a Report and Recommendation on Objections, Order 25
Consolidating Cases and Notice of Hearing. (G.C. Ex. 1(f)) In his Report, the Regional Director
set for hearing the Petitioner’s objections number 2, 3, 4, and 6, plus certain parts of objection
number 5. As the Regional Director found that those objections raised material issues of fact
and credibility, which could best be resolved at a hearing, and that certain of those objections
raised matters also alleged in the complaint, he determined that the purposes of the Act would 30
best be effectuated and unnecessary cost or delay avoided by considering jointly the unfair
labor practice allegations in the complaint and the Petitioner’s objections. He therefore ordered
that these matters be consolidated for purposes of hearing, ruling, and decision, by an
administrative law judge. Accordingly, I heard the issues relating to the Petitioner’s objections
at the same time as I heard the unfair labor practice allegations in this combined matter. 35
All parties appeared at the hearing, and I provided them with the full opportunity to
participate, to introduce relevant evidence, to examine and cross-examine witnesses, and to
argue orally and file briefs. Based on the record, my consideration of the briefs filed by counsel
for the General Counsel, counsel for the Respondent, and counsel for the Union, and my 40
observation of the demeanor of the witnesses,3 I now make the following finding s of fact and
conclusions of law.

1 All pleadings reflect the complaint and answer as those documents were finally amended
at the hearing.
2 All dates hereinafter refer to 2012, unless otherwise indicated.
3 The credibility resolutions made in this decision are based on a review of the testimonial
record and exhibits, with consideration given for reasonable probability and the demeanor of the
witnesses. See NLRB v. Walton Manufacturing Company, 369 NLRB 404, 408 (1962). Where
witnesses have testified in contradiction to the findings herein, I have discredited their
testimony, as either being in conflict with credited documentary or testimonial evidence, or
Continued
JD(SF)–08–13
3
FINDINGS OF FACT
I. Jurisdiction
5
The complaint alleges, the answer admits, and I find that at all times material herein, the
Respondent has been a California corporation with an office and place of business in Campbell,
California where it has been engaged in providing school and other transportation services.
Further, I find that in the twelve months immediately preceding the issuance of the complaint,
the Respondent, in the course and conduct of its business operations just described, derived 10
gross revenues in excess of $250,000; and during the same period of time, purchased and
received goods valued in excess of $5,000, which originated outside the State of California.
Accordingly, I conclude that the Respondent is now, and at all time material herein has
been, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the 15
Act.
II. Labor Organization
The complaint alleges, the answer admits, and I find that at all times material herein, the 20
Union has been a labor organization within the meaning of Section 2(5) of the Act.
III. Alleged Unfair Labor Practices and Alleged Objectionable Conduct
A. Background Facts and the Dispute25
The Employer operates a fleet of buses, which transport children to and from various
schools in the Santa Clara County, California metropolitan area. Some of the children have
disabilities. The Employer employs school bus drivers and other employees at its Campbell,
California location. The drivers are responsible for the safe transportation of the children over 30
routes serving the various schools. The Employer’s fleet of buses includes small 20-passenger
vehicles with hydraulic brakes, and relatively fewer large 87-passenger buses with air brakes.
It is undisputed that all school bus drivers in the State of California must be certified by
the California Highway Patrol (CHP) in order to drive a school bus. A certification lasts for 5 35
years, and it expires on the driver’s birthday. If a driver’s certification expires, then that driver is
no longer qualified to drive any school bus in the State, until such time as the certification has
been renewed. The goal for each driver is to have the certification renewed before the date of
expiration, so that there is no lapse in certification.
40
In order to have a certification renewed, a driver must attend 10 hours of classroom
instruction, must pass a written exam administered by CHP, must pass a pre-trip inspection test
administered by CHP, and finally must pass a driving test also administered by CHP. If a
person fails the driving test 3 consecutive times, there is hiatus before the test can be taken
again. 45
The Employer assists both prospective drivers in obtaining their initial certification, and
those current or former employee drivers who are attempting to renew their certification.
Carmon Lavallee is the Employer’s State Certified Trainer. She is responsible for assisting the
_________________________
because it was inherently incredible and unworthy of belief.
JD(SF)–08–13
4
Employer’s drivers who are attempting to get recertified. She ensures that they attend the
mandatory safety classes, receive driver training, and are scheduled for their CHP tests.
Lavalle contacts CHP in order to schedule the drivers for their exams. The Employer pays for its
drivers to attend the recertification training. Lavalle’s immediate supervisor is Steve
Raaymakers, Safety and Training Supervisor. 5
Helen Cheesman has worked for the Employer as a school bus driver for approximately
5 years. She testified that the Union’s organizing campaign began in the summer of 2011.
According to Chessman, she was very active in that campaign. Chessman handed out pro-
union flyers outside the entrance to the Employer’s bus yard 3-4 times a week, over a 3-4 month 10
period. Some of these flyers contained Chessman’s name and picture. The handbilling
occurred within 50 feet of the dispatchers’ office and close to the offices of the other managers,
where, according to Chessman, she was frequently observed by those managers. Chessman
testified that additionally she posted pro-union flyers on the bulletin board at work, went to union
meetings, and was vocal in her support for the Union when conversing with fellow employees. It 15
is the General Counsel’s contention that Chessman was a very active union supporter, which
contention is not denied by the Employer.
Cheesman’s certification to drive a bus was scheduled to expire on her birthday, March
1, 2012. For some time she had been in the process of going through the steps of having her 20
certification renewed. Chessman had taken the requisite 10 hours of classroom instruction, had
passed the written exam, and had passed the pre-trip inspection test. However, she had twice
failed the driving test. Apparently, the difficulty in passing the driving test was the result of being
tested on the larger 87 passenger bus with air brakes, rather than the smaller 20 passenger bus
with hydraulic brakes that she was used to driving. As the Employer used both types of buses, 25
being certified on the larger bus with air brakes would make Cheesman a more valuable and
versatile employee.
In July 2011, Ron Mahler became the interim General Manager of the Respondent’s
Campbell facility, and on about September 17, 2011, became the General Manager. The 30
previous General Manager was Dave Burgess. Mahler’s immediate subordinate is Sharon
Romo, Operations Manager.
It is undisputed that under Burgess’ management, when a driver’s certification expired,
because it had not been renewed, the Employer did not terminate or “separate” the employee 35
from the Company. While the employee could no longer drive a school bus, and, so, generally
did not report for work and was not paid, the expectation was that as soon as that employee
could get recertified, he or she would resume bus driving duties. This was the past practice
under the Burgess administration, and a number of employee witnesses testified that after being
recertified, they were almost immediately put back on bus driving duties for the Employer. 40
Further, it is uncontested that at no time were these drives terminated or “separated” from their
employment, and they did not have to complete any paperwork in order to return to their duties.
However, it is the Employer’s contention that the past practice changed when Mahler
became General Manager. According to Mahler’s testimony, when a driver’s certification 45
expires, and, as that employee can no longer drive a school bus, within a short period of time,4 if
that driver is not recertified, the employee is terminated or “separated” from the Company. Yet,

4 The Employer never specified what “grace period” Mahler gave to drivers whose
certification had expired. However, it seemed that Mahler was suggesting this was a matter of
just days, and might vary depending on the circumstances in each case.
JD(SF)–08–13
5
it must be noted that even under Mahler’s administration at least one driver, Vanessa Pena was
treated in the fashion of the old system. Her certification lapsed on February 10, 2012, but she
was not terminated or “separated.” Instead, after she obtained her recertification approximately
1 week later, she was immediately put back to work as a bus driver, without having to fill out
reemployment paperwork.5
The Employer contends that because of the circumstances surrounding Cheesman’s
lapse in certification, that she was actually terminated or “separated” from her employment as of
March 6. Mahler testified that Chessman was being uncommunicative following her lapse of
certification on March 1, and did not seem to be making progress towards recertification.10
The facts establish that Chessman twice failed the driving portion of her recertification
test, once in late January 2012 and a second time in mid-February 2012. It is undisputed that
Chessman was having difficulty finding the opportunity to practice her driving on the larger
buses of which there was a limited number at the Campbell yard, and because of a shortage of 15
trainers qualified on those buses. In any event, on March 3, 2012 there was a telephone
conversation between Carmina Lavallee and Cheesman, during which Lavallee indicated that
she had scheduled Cheesman for another CHP driving test on March 5. Lavallee then asked
Cheesman if she was ready to take the test. Chessman responded that she was not ready, as
she had not received additional training on the larger bus since failing the driving test for the 20
second time. According to Chessman, Lavallee then said, “Okay, I’ll reschedule it for you.”
Further, Chessman testified that the decision to postpone her driving test was “mutual” on her
and Lavallee’s part. While Lavallee testified that Chessman had initiated the call and it was
Chessman who asked to have the test cancelled as Cheesman was not ready and did not want
to “blow her last shot,” Lavallee acknowledged that “[she] agreed with [Chessman].” It was 25
Lavallee who then contacted CHP to cancel the March 5 test.5
To the extent that there is a variance in the testimony between Cheesman and Lavallee,
I credit Cheesman. In general, I found her to be a credible witness. She testified in a matter of
fact, straight forward way, without exaggeration or embellishment. While she is obviously 30
personally interested in the outcome of this proceeding, I did not get the sense that she was
altering the facts to fit her claim. Her testimony had the “ring of authenticity” to it and was
inherently probable. Specifically regarding her conversation with Lavallee, Cheesman’s
testimony seems more reasonable. Lavallee was trying to be helpful to Cheesman in her quest
to be recertified. After all, it was to the benefit of both Cheesman and the Employer for 35
Cheesman to get recertified, and, accordingly, be able to once again drive a school bus. To that
end, Lavallee was likely to have readily agreed with Cheesman that the CHP driving test should
be cancelled once Lavallee learned that Chessman did not feel ready to take the test. Failing
the driving test for a third time would have meant a long hiatus before Chessman could retake
the test. Therefore, I conclude that Lavallee, as the Employer’s agent6 for purposes of 40

5 It is undisputed that regular employees do not have the ability or authority to directly
contact CHP and schedule a driving test. Lavallee does have that ability and authority, and she
is the person responsible for the Employer to schedule driving tests with CHP’s for the
employees.
6 The employees would reasonably assume that Lavallee spoke for the Employer regarding
the training and testing of bus drivers as this was apparently her primary function. The drivers
interacted directly with Lavallee as the Employer’s representative concerning these matters.
Accordingly, I conclude, despite the Respondent’s denial, that Lavallee was an agent of the
Employer within the meaning of Section 2(13) of the Act, as alleged in complaint paragraph
5(b).
JD(SF)–08–13
6
arranging for its employees to take CHP driving tests, found it acceptable for Chessman to have
her test rescheduled.
Ron Mahler testified that on March 6 he decided to terminate Chessman, after he
learned that her appointment with CHP to take her driving test had been cancelled. While not 5
all that clear from his testimony, Mahler appears to be contending that he was willing to allow
Cheesman to remain as an employee as long as she was making progress towards obtaining
her recertification. However, once her test appointment was cancelled, he decided to no longer
do so and he “separated” her from the Employer. To that end, he filled out a “Work Separation
Form,” which was signed by Mahler on March 6 and placed in Cheesman’s personnel fine. The 10
form indicates that Cheesman is being involuntarily separated because she is “No Longer
Qualified,” presumably as a bus driver, but is “Rehireable.” It is significant to note that
Cheesman did not sign the form. (Emp. Ex. 3.) Mahler acknowledges that Cheesman did not
learn of her termination until March 9. However, he contends that this was her own fault as she
was uncommunicative. 15
While the Respondent does not claim that Mahler’s alleged new policy of terminating
drivers whose certification had expired was announced to the employees as a whole, or to
Chessman individually, it contends that the new policy was applied to at least two employees in
addition to Cheesman, namely Harold Andrews and Celestine Sharp. Regarding current bus 20
driver Andrews, he testified that after his certification lapsed in January 2012, he received a
termination letter, subsequently to be rehired after his certification was renewed. However, on
cross-examination, Andrews almost literally “fell apart.” He admitted that he was “not totally
clear on a lot of things at that first couple of weeks after my termination. I did speak with Ron
[Mahler] orally…in fact, to be totally honest, [it] may not have been a letter, it may have been 25
verbal, but, regardless, I knew without a certification, I’d go unemployed.” Further, he testified
that at the time “[his] world had caved in,” and he looked back at that period of time with
confusion. It should also be noted that counsel for the Respondent never produced a written
termination letter for Andrews.
30
I do not find Andrews credible or his testimony probative. Not only did he admit his
confusion regarding the events surrounding his alleged termination and testified inconsistently,
but his demeanor while testifying was very unusual. He seemed visibly angry, hostile, and
upset with counsel for the General Counsel and counsel for the Union. He was so upset in fact
that the undersigned found it necessary to ask him to “calm down.” Accordingly, I do not believe 35
that the credible evidence establishes that the Employer issued a termination letter or document
to driver Andrews at the time that his certification lapsed.
Router/Driver7 Celestine Sharp testified that her certification lapsed on March 11, 2012.
This was 10 days after Cheesman’s certification lapsed. According to Sharp, at the time her 40
certification lapsed, she was told by Mahler that she was being “separated” from the Company
because she had been hired as a driver and without a valid certification she could no longer
perform that duty. However, on cross-examination she admitted that she never received any
type of written termination notice or letter. After she renewed her certification, she returned to
work. 45
Counsel for the General Counsel and counsel for the Union objected to the receipt of
Sharp’s testimony regarding her “separation” from the Company on the basis that it occurred

7 A router/driver works at arranging and staffing the various bus routes and also drives as
necessary.
JD(SF)–08–13
7
after Chessman was allegedly separated and was not relevant to show the Employer’s past
practice. In his post-hearing brief, counsel for the General Counsel further argues that the
Employer’s action in allegedly separating Sharp was simply designed to “cover its tracks,” as it
could assume that Cheesman’s alleged termination would likely result in litigation. While I
allowed the testimony to be given, upon further reflection, I conclude that as the Employer’s 5
action in allegedly separating Sharp occurred after the date on which Cheesman was allegedly
terminated, that testimony is entitled to only minimal weight in attempting to serve as evidence
of the Employer’s past practice.
According to Mahler, on March 8, 2 days after separating Cheesman, he tried to call her 10
three times to inform her that she had been terminated. He testified that he called the only
phone number currently on record with the Employer. For some reason, Mahler called that
number three times in very close succession. He never really coherently explains why he
placed those calls so closely together. In any event, the first two times he called he received no
answer, but left a voice mail message asking Cheesman to call him. On the third attempt, a 15
man answered the phone who identified himself as Chessman’s son, and who took a message
to have Chessman call Mahler. However, Mahler never received a call back from Chessman.
Chessman testified that she had changed her mobile phone number sometime earlier in
the year upon obtaining a new phone, having given her old phone to her ex-husband. She 20
admits that she did not formally notify the Employer of her change in phone numbers, failing to
update the information on the Employer’s records. However, she claims that both Carmina
Lavallee and at least one of the Employer’s dispatchers had her new phone number, as they
called her using that number. Further, she testified that she was never told that she needed to
remain in contact with Mahler after her certification lapsed. According to Cheesman, she 25
remained in regular contact with Lavallee, which the Employer does not dispute. Lavalle and
Cheesman remained in phone contact as Lavallee attempted to arrange additional training for
Cheesman on the larger bus and to arrange for her to take the CHP driving test. Cheesman
denies ever receiving any message from Mahler to call him.
30
I fail to see the significance of Mahler’s alleged efforts to contact Cheesman, or her
alleged failure to keep in contact with Mahler and failure to update her phone records with the
Employer. Mahler knew on March 6 that Cheesman had cancelled her CHP driving test, having
been so informed by Lavallee. He allegedly decided that day to terminate Cheesman, and filled
out, signed, and dated the separation form placed in Cheesman’s file. (Emp. Ex. 3.) As the 35
decision was allegedly already made, what difference did it make that two days later Mahler
attempted to call Cheesman, left a message, but did not hear back from her? Whether
Chessman was uncommunicative or not, the deed had, according to Mahler, already been
done. He had allegedly terminated Cheesman, which termination was unrelated to her failure to
keep in contact with Mahler.40
The Union election was scheduled for March 9. Cheesman went to the Campbell facility
on that date, apparently for two purposes, specifically to get her paystub for her regular biweekly
Friday paycheck and for the purpose of voting in the representation election. Normally she
picks up her paystub from the payroll department, which is near the upstairs lounge. However, 45
as this area was reserved for purposes of the election that day, Cheesman instead had to obtain
her paystub from Ron Mahler. Cheesman testified that when she entered Mahler’s office, he
told her that she was no longer employed by Durham. She asked him why, and he allegedly
responded that it was because her certification had expired. According to Chessman, she
argued that there had been other employees previously whose certifications had expired and 50
who were thereafter not told that they were no longer employed. Mahler allegedly responded
that “this is a new policy,” and that the old policy had “changed.” Further, he is alleged to have
JD(SF)–08–13
8
told her that as soon as she passed her certification that she could return to work. It is
important to note that at no time did Cheesman ever receive a written termination notice.
Mahler tells a significantly different version of this conversation. He testified that
Chessman entered his office on the day of the election and had a conversation with Steve 5
Raaymakers, the safety and training supervisor. Mahler specifically testified that he had no
conversation with Cheesman that day about her having been terminated from the Company.
However, Raaymakers’ testimony was not much support for Mahler, as Raaymakers could
barely recall even being in Mahler’s office on the day of the election, and he could not recall any
conversation that he had with Cheesman on that day.10
In my opinion, Mahler’s version of the events in his office on March 9 is simply not
credible. Mahler contends that a day earlier he had been so anxious to tell Cheesman that she
had been terminated that he tried to call her three times, leaving a voice mail message as well
as a message with her son to have her return his call. If this was so, why would Mahler not 15
have used the opportunity of having Cheesman in his office to inform her that she had been
fired? It is not logical that Mahler would have remained silent in view of the fact that, as far as
he knew, she still was not aware of her discharge.
For the reasons that I stated earlier, I found Cheesman to be credible. I continue to do 20
so regarding her conversation with Mahler. Her version of this incident is much more
reasonable. She testified that Mahler informed her that she had been fired. I believe that he did
so, and, in fact, was anxious to do so as he hoped to cause her not to vote in the election which
was in progress.
25
In any event, Mahler was unsuccessful in dissuading Cheesman from voting. According
to Cheesman, she went directly to the voting area where she encountered the company
observer, Ferdinand “Dino” Torres. The Board Agent conducting the election apparently
informed Cheesman that her vote was being challenged by the company observer. Torres was
a fellow bus driver known to Cheesman. She asked him why he was challenging her right to 30
vote, and either Torres or the Board Agent, it is not entirely clear which one, replied that it was
because she no longer worked for Durham. Torres’ version of these events is similar except
that he testified that after Cheesman was told that her vote was being challenged by the
Company, she responded to Torres, “So, we’re no longer friends anymore.” In addition to
Cheesman, Torres, and the Board Agent, also present and in close proximity at the time of this 35
conversation were the union observer, Rosie, and the next voter in line, Lupe Rodriguez, both of
whom are bus drivers.
After voting by challenged ballot, Cheesman proceeded to the company yard where
there were approximately six drivers congregated. She told them that Mahler had informed her 40
that she was no longer employed by Durham because her certification had expired, and she
asked whether any of them had ever been told such a thing. Several of the drives spoke up and
remarked that they had had their certifications lapse and were never informed that for that
reason they were being discharged. According to Cheesman, at the time that she was having
these conversations, employees were still voting in the representation election. After a while, 45
she left and returned home.
The day following the election, March 10, Lavallee called Cheesman to inform her that
Lavallee had arranged for Cheesman to receive training on the larger bus from a certified
trainer, Kristy Urbina, in a neighboring school district. Cheesman attended several training 50
sessions with Urbina, which training was fully paid for by the Employer. The last training
session was also attended by Lavallee, following which the consensus was that Cheesman was
JD(SF)–08–13
9
ready to take her driving test. Subsequently, Lavallee arranged with CHP for Cheesman to take
her driving test.
On March 20, 2012, Cheesman retook and passed her CHP driving test. Urbina was on
the bus at the time, and as Cheesman was still driving the bus, it was Urbina who actually called 5
Mahler to inform him that Cheesman had passed. Urbina informed Cheesman that Mahler had
said that Cheesman should report for work the very next day, March 21. The next day she
reported for work as directed. When she showed up, Steve Raaymakers instructed her to fill out
a “New Hire/Rehire Form.” (Emp. Ex. 4.) She did not have to fill out a new W-4 form, or any tax
related documents, which documents Mahler testified are not generally required of rehired 10
employees. However, it is important to note that during the hearing the Employer did not offer
any evidence that any other driver whose certification had lapsed was required upon
recertification to fill out this “New Hire/Rehire Form.”
When Cheesman resumed working it was at the same rate of pay that she previously 15
earned. Also, she incurred no loss in seniority. No evidence was offered by the Employer to
show that any driver whose certification lapsed was reduced in pay or seniority at the time the
driver was recertified and returned to work. Cheesman has remained as a driver through at
least the date of the hearing.
20
Finally, it should be pointed out that although Cheesman was allegedly fired by Mahler
on March 6, she was not immediately paid for her work performed as of that date, and was not
advised of her medical insurance rights under COBRA. These are requirements under
California law, which an Employer must satisfy regarding terminated employees.
25
B. Legal Analysis and Conclusions Regarding the Termination of Helen Cheesman
It is alleged in complaint paragraphs 6, 7, 8, and 9 that the Respondent terminated
Cheesman, and informed her of that termination, because of her union activity and in order to
disenfranchise her from voting in the representation election, all in violation of Section 8(a)(1) 30
and (3) of the Act. Under the General Counsel’s theory of this case, the termination of
Cheesman was allegedly a sham or a ruse. However, whether Cheesman was actually fired or
merely told that she had been terminated would not change the legal issues involved in the
case. Of course, the Respondent takes the position that it fired Cheesman for lawful reasons,
namely the lapse of her bus driver certification, unrelated to any union activity that she may 35
have engaged in and unrelated to the representation election.
In Wright Line, A Division of Wright Line, Inc., 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the Board announced the following
causation test in all cases alleging violations of Section 8(a)(3) or violations of Section 8(a)(1) 40
turning on employer motivation. First the General Counsel must make a prima facie showing
sufficient to support the inference that protected conduct was a “motivating factor” in the
employer’s decision. This showing must be by a preponderance of the evidence. Then, upon
such a showing, the burden shifts to the employer to demonstrate that the same action would
have taken place even in the absence of the protected conduct. The Board’s Wright Line test 45
was approved by the United States Supreme Court in NLRB v. Transportation Corp., 462 U.S.
393 (1983).
In the matter before me, I conclude that the General Counsel has made a prima facie
showing that Cheesman’s union activity was a motivating factor in the Respondent’s decision to 50
terminate her, or, at a minimum, to at least inform her that she had been terminated. In Tracker
Marine, L.L. C., 337 NLRB 644 (2002), the Board affirmed the administrative law judge who
JD(SF)–08–13
10
evaluated the question of the employer’s motivation under the framework established in Wright
Line. Under the framework, the judge held that the General Counsel must establish four
elements by a preponderance of evidence. First, the General Counsel must show the existence
of activity protected by the Act. Second, the General Counsel must prove that the Respondent
was aware that the employee had engaged in such activity. Third, the General Counsel must 5
show that the alleged discriminatee suffered an adverse employment action. Fourth, the
General Counsel must establish a link, or nexus, between the employee’s protected activity and
the adverse employment action. In effect, proving these four elements creates a presumption
that the adverse employment action violated the Act. However, more recently the Board has
stated that, “Board cases typically do not include [the fourth element] as an independent 10
element.” Wal-Mart Stores, Inc., 352 NLRB 815, fn. 5 (2008) (citing Gelita USA, Inc., 352 NLRB
406, 407, fn.2 (2008)); SFO Good-Nite Inn, L.L.C., 352 NLRB 268, 269 (2008); also see Praxair
Distribution, Inc., 357 NLRB No. 91, fn. 2 (2011). In any event, to rebut the presumption, the
Respondent bears the burden of showing the same action would have taken place even in the
absence of protected conduct. See Manno Electric, Inc., 321 NLRB 278, 280, fn.12 (1996); 15
Farmer Bros., Co., 303 NLRB 638, 649 (1991).
As I have already found in the fact section of this decision, Cheesman engaged in
significant union activities. Further, it is clear that those union activities were well known to the
Respondent’s management. Cheesman handed out pro-union flyers outside the entrance to the 20
Employer’s bus yard 3-4 times a week, over a 3-4 month period. Some of these flyers
contained Cheesman’s name and picture. The handbilling occurred within 50 feet of the
dispatchers’ office and close to the offices of the other managers, where, according to
Cheesman’s credible testimony, she was frequently observed by those managers. Cheesman
further testified that additionally she posted pro-union flyers on the bulletin board at work, went 25
to union meetings, and was vocal in her support for the Union when conversing with fellow
employees. During his testimony, General Manager Mahler never denied that he knew that
Cheesman was an active union supporter.
Of course, there is no question that terminating Cheesman, and/or informing her that she 30
had been terminated constituted an adverse employment action. While it is true that once
Cheesman’s certification lapsed she could no longer drive a school bus for Durham, she
certainly could have continued to be employed by the Employer in some other capacity, had the
Employer chosen to do so. Instead, Mahler chose to terminate Cheesman on March 6 (Emp.
Ex. 3.), and to inform her on March 9 that she had been so terminated.35
Mahler’s action in terminating Cheesman on March 6, three days before the
representation election, and in informing her of the termination on March 9, the very day of the
election, was, in my opinion, intended to prevent her from voting in that election. Mahler would
certainly have perceived her as a vote in favor of union representation. The original election 40
had been close, and preventing Cheesman from voting might well have been enough to cause
the Union to lose the rerun election. Further, informing Cheesman on the very day of the
election that she had been terminated would serve to not only chill her union activity but that of
other employees who were inclined to vote for the Union. The timing of Mahler’s action is
certainly highly suspect and ties that action directly to Cheesman’s union activity and to her45
support for the Union.
Accordingly, I believe that counsel for the General Counsel has presented all the
elements necessary to establish a prima facie case that the Respondent was motivated to
terminate Cheesman and inform her that she had been terminated, at least in part, because of 50
her union activity. The burden now shifts to the Respondent to show that it would have taken
the same disciplinary action against Cheesman absent her union activity. Senior Citizen
JD(SF)–08–13
11
Coordinating Counsel of Riverbay Community, 330 NLRB 1100 (2000); Regal Recycling, Inc.,
329 NLRB 355 (1999). The Respondent must persuade by a preponderance of the evidence.
Peter Vitalie Company, Inc., 310 NLRB 865, 871 (1993). I am of the view that the Respondent
has failed to meet this burden. The Respondent’s reasons for terminating Cheesman appear to
be a pretext. 5
The Respondent contends that it has a past practice of terminating or “separating” bus
drivers whose certifications have lapsed. However, the evidence shows otherwise. As was
noted above in the fact section of this decision, under the administration of the previous General
Manager, Dave Burgess, when a driver’s certification expired because it had not been renewed, 10
the Employer did not terminate the employee. While the employee could no longer drive a
school bus, and, so, generally did not report for work and was not paid, the expectation was that
as soon as that employee could get recertified, he or she would resume bus driving duties. The
Respondent does not deny that this was the past practice under Burgess. Never the less, it
contends that the practice changed under the Mahler administration. However, the probative, 15
credible evidence is to the contrary.
In the case of one bus driver, Vanessa Pena, whose certification lapsed on February 10,
2012, only 18 days before Cheesman’s lapsed, she was treated exactly the same way as
drivers had always been treated in the past, despite the fact that Mahler was now the General 20
Manager. Pena was not terminated or “separated.” Instead, after she obtained her
recertification approximately 1 week later, she was immediately put back to work as a bus
driver, without having to fill out reemployment paperwork.
The Respondent holds out the treatment of Harold Andrews in January 2012 as an 25
example of a driver whose certification lapsed and who was treated under the “new system,”
and allegedly terminated. However, as noted earlier, I found Andrews not to be a credible
witness who was so confused as to be unable to recall whether he was ever notified that he was
terminated.
30
Another example offered by the Respondent was that of Celestine Sharp who testified
that she was terminated on March 11, 2012, because her certification lapsed. However, as I
indicated above, I am of the belief that her example is entitled to little evidentiary weight since
her “separation” occurred after that of Cheesman. In my view, this was merely an attempt on
the part of Mahler to “cover his tracts” and make it appear that Cheesman was not being treated 35
disparately under the alleged new system.
Finally, Mahler’s contentions that Cheesman’s alleged failure to diligently pursue her
recertification and to keep in contact with him served as a justification for her termination are
simply false. The facts show conclusively that Cheesman did diligently pursue her 40
recertification. She was in regular contact with Carmina Lavallee, the Employer’s State Certified
Trainer, who had mutually agreed with Cheesman that the CHP driving test scheduled for March
5 should be cancelled as Cheesman had not had the opportunity to be adequately trained on a
large bus. Lavallee was actively seeking additional training for Cheesman, who was anxious to
be trained and accepted training from certified trainer Kristy Urbina as soon as it became 45
available. Cheesman had never been told to keep in direct contact with Mahler. Further, there
is no credible evidence that his inability to reach her by phone was intentional on her part, or
anything more than confusion over Chessman’s current phone number.
The credible evidence does show that Mahler treated Cheesman in a disparate fashion, 50
terminating her only 5 days after her certification lapsed, rather than first giving her a fair
opportunity to get recertified. The Respondent’s arguments to the contrary are nothing more
JD(SF)–08–13
12
than a pretext for the true reason for her termination, namely because of Cheesman’s union
activity, and in an effort to keep her from voting in the representation election, and also in an
effort to restrain other employees from engaging in union activity.
As I find that the Respondent’s defense is a pretext, it is, therefore, appropriate to infer 5
that the Respondent’s true motive in terminating Cheesman was unlawful. Williams
Contracting, Inc., 309 NLRB 433 fn. 2 (1992); Limestone Apparel Corp., 255 NLRB 722 (1981),
enfd. 705 F.2d 799 (6th Cir. 1982); Shattuck Deann Mining Corp., v. NLRB, 326 F.2d 466, 470
(9th Cir. 1966). I find that the real motive behind the Respondent’s conduct in terminating
Cheesman and in informing her of the termination was in retaliation for her union activity and in 10
order to prevent her from voting in the representation election, and in order to interfere with,
restrain, and coerce other employees from engaging in union activity.
Accordingly, I find that by terminating Cheesman on March 6, 2012, and by informing her
on March 9, 2012 that she was terminated the Respondent has violated Section 8(a)(3) and (1) 15
of the Act, as alleged in complaint paragraphs 6, 7,and 9; and has violated Section 8(a)(1) of the
Act as alleged in complaint paragraphs 6, 7, and 8.
C. The Legal Analysis and Conclusions Regarding the Objections
20
As reflected in the Regional Director’s Report and Recommendations on Objections,
Order Consolidating Cases and Notice of Hearing (G.C. Ex. 1(f)), there are a number of
objections to the election referred to the undersigned for resolution,8 some of which are identical
to or concomitant with the unfair labor practices alleged in the complaint. Where the objections
are identical to or concomitant with the unfair labor practices, the issues will not be restated, but 25
only the conclusions previously reached.
Objections Number 2 and 3
Objection number 2 reads as follows: “The Employer terminated an employee on 30
account of her union and or protected activity.”
Objection number 3 reads as follows: “The Employer changed its policy with respect to
drivers who have issues with respect to their certificates during the critical pre-election period.”
35
These two objections are, for all practical purposes, identical to the unfair labor practice
charges addressed above. As was discussed above at some length, I have concluded that the
Employer terminated Helen Cheesman on March 6 and informed her of that termination on
March 9 because of her union activity, and in order to prevent her from voting in the
representation election, and in order to restrain other employees from supporting the Union and 40
from voting in the election. Further, I concluded that the Employer, as a pretext for terminating
Cheesman, allegedly changed its policy regarding bus drivers whose driving certification lapsed.
As I have concluded that this conduct on the part of the Employer constituted unfair
labor practices in violation of Section 8(a)(1) and (3) the Act, I must conclude that said conduct 45
also constituted objectionable conduct as it interfered with the laboratory conditions of the
election. Accordingly, I find merit to objections number 2 and 3.

8 Certain other numbered objections were overruled by the Regional Director without being
referred to the undersigned.
JD(SF)–08–13
13
Objections Number 4 and 6
Objection number 4 reads as follows: “The Employer interfered with the election by
terminating an employee in the presence of other workers who were voting and or terminated
the employee when the employee was voting which interfered with the laboratory conditions.”5
Objection number 6 reads as follows: “The Employer interfered with laboratory
conditions by influencing employees in the voting by engaging in coercive conduct.”
As I have discussed earlier, when Cheesman entered Mahler’s office on March 9 to get 10
her paystub, the election was in progress. It was at that time that Mahler first informed
Cheesman that she had been terminated. That information was relayed to her a second time
shortly thereafter when she went to vote in the election. Upon approaching the Board Agent
conducting the election, she learned that her right to vote was being challenged9 by company
observer Ferdinand “Dino” Torres because allegedly she was no longer an employee of 15
Durham. This information was told to Cheesman with other potential voters present,
specifically, Torres, union observer Rosie Miranda, and Lupe Rodriguez, who was waiting in line
to vote. Additionally, while the election was still in progress, Cheesman explained to
approximately 6 drivers congregated in the company yard that she had been terminated
because her certification had lapsed. She engaged these eligible voters in conversation about 20
the circumstances surrounding her termination and whether they knew of any similar situation
where a driver whose certification lapsed had been terminated. They did not.
Cheesman was a leading union supporter. Certainly Cheesman being informed in the
presence of other potential voters in the polling area that she was no longer a Durham 25
employee would reasonably have had a coercive effect on those potential voters. Similarly,
different potential voters present in the company yard while voting was still in progress were
informed by Cheesman herself that she had been terminated, which news would reasonably
also have had a coercive effect on the way they voted, or even whether they voted at all. The
fact that Cheesman herself “spread the word” regarding her termination did not detract from the 30
coercive effect of the Employer’s actions. Word of the termination of a leading union supporter
on the day of the election for what was at best a specious reason was bound to have been
circulated through the ranks of the potential voters no matter its source.
As noted, I have concluded that Cheesman’s termination constituted an unfair labor 35
practice. However, even assuming, arguendo, that her termination was a legitimate response to
her certification having lapsed, under the Respondent’s alleged “new policy” she would have
had a reasonable expectation of reinstatement as soon as her certification was renewed.
Therefore, she should have been eligible to vote in the election. Under those circumstances,
the Employer’s challenge of Cheesman’s ballot also constituted an attempt to restrain and 40
coerce Cheesman and other potential voters in the exercise of their Section 7 rights.10
In any event, I find that the Employer’s conduct in informing Cheesman of her
termination on the very day of the election and in the vicinity or presence of other potential

9 Cheesman’s challenged ballot was one of two non-determinative ballots in this case.
10 See Oahu Refuse Collection, Inc., 212 NLRB 224 (1974), where the Board found that the
employer violated Section 8(a)(1) and (3) of the Act when it delayed reinstating a previously
discharged employee until after the date of a representation election, so as to prevent the union
supporter from voting in the election or having his vote counted.
JD(SF)–08–13
14
voters to constitute conduct which interfered with the laboratory conditions of the election.
Accordingly, I find merit to objections number 4 and 6.
Objection Number 5
5
Objection number 5 reads as follows: “The Employer maintained unlawful rules which
interfered with the election.”
In the Regional Director’s Report and Recommendation on Objections he finds that only
a portion of objection number 5 merits consideration at a hearing. He concludes that the 10
Employer’s rules regarding “off-duty employee solicitation” and “social networking” raises
material issues of fact or law as would warrant a hearing.
On page 12 of the Employer’s Employee Handbook under the heading “Solicitation,”
number 5, appears the following language: “Off-duty employees should not enter (except for 15
legitimate business reasons) any Company facility not open to the general public and are
prohibited from interfering or causing a disturbance with an on-duty employee’s performance of
his/her work duties.” (Un. Ex. 1, p. 12.) In my view, the maintenance of this rule was unlawful
and could have reasonably affected the results of the election.
20
In Jurys Boston Hotel, 356 NLRB No. 114 (2001), the Board held that the maintenance
of an invalid rule, there pertaining to solicitation, “loitering” (access), and the wearing of union
emblems and buttons, constituted objectionable conduct during the election period. Further, the
Board held that the election, decided by a single vote, must be set aside, since the election
“might well have been affected by the rules at issue,” which rules had a reasonable tendency to 25
chill or otherwise interfere with the pro-union campaign activities of employees during the
election period. Id., 2-5. In any event, the Board has long held that “whether an election should
be invalidated based on alleged misconduct does not turn on election results [even a large
margin of victory] but rather upon an analysis of the character and circumstances of the alleged
objectionable conduct.” Freund Baking, 336 NLRB 847 fn. 5 (2001) (case citations omitted). 30
In the matter at hand, the rule in question prohibits off-duty employee access, “except for
legitimate business reasons.” However, the Board held in Tri-County Medical Center, Inc., 222
NLRB 1089, 1089 (1976), that a rule restricting employees’ off-duty access to the employer’s
premises is valid only if it “(1) limits access solely with respect to the interior of the [employer’s35
premises] and other working areas; (2) is clearly disseminated to all employees; and (3) applies
to off-duty employees seeking access to the [employer’s premises] for any purposes and not
just to those employees engaging in union activity.” (emphasis added by the undersigned).
Also in accord see Sodexo America LLC, 358 NLRB No. 79 (July 3, 2012). As the rule is
conjunctive, all 3 prongs must be met. 40
The Employer’s rule in the instant matter states that employees “should not enter
(except for legitimate business reasons) any Company facility not open to the general public.”
This rule fails to meet the third Tri-County prong because it does not prohibit off-duty access for
any purposes, but, rather, only, in the Employer’s opinion, for those purposes which are not 45
“legitimate business reasons.” Therefore, the off duty access rule is facially invalid under the
Tri-County three-prong test.
Further, regarding the second Tri-County prong, the Employer’s off-duty access rule also
improperly prohibits off-duty employees from accessing outside nonworking areas of the 50
property. During the hearing, Ron Mahler testified that at the Employer’s facility there is a picnic
table or picnic area outside where the employees can eat. However, the Employer’s written rule
JD(SF)–08–13
15
prohibits off-duty employees from entering any non-public area of the facility, which would seem
to include the picnic area. Of course, the picnic area is clearly a nonworking area since the
employees are able to spend time there eating and talking, rather than working. The Employer
offered no legitimate business reason why employees should be prohibited from access to the
picnic area and, in fact, they do spend off-duty time there. Accordingly, the Employer’s off-duty 5
access rule is also facially invalid under the second Tri-County prong.
For the reasons stated above, I conclude that the maintenance of the Employer’s off-
duty access rule had a reasonable tendency to chill or otherwise interfere with the pro-union
campaign activities of employees during the election period. Jurys Boston Hotel, supra. 10
Accordingly, I find merit to this portion of objection number 5.
In the Employer’s 2010 Handbook Addendum can be found its “Social Networking
Policy.” (Un. Ex. 2, p. 2-3.) Under the subheading “Social Networking Websites,” among other
language it states that, “It is also recommended that the employees of …Durham School 15
Services…limit contact with parents or school officials, and keep all contact appropriate.
Inappropriate communication with students, parents, or school representatives will be grounds
for immediate dismissal.” Further, under the subheading “Interaction with Co-workers,” among
other language it states that, “communication with coworkers should be kept professional and
respectful, even outside of work hours.” Continuing under the heading of “Expectations of 20
Privacy,” the addendum states that, “Employees who publicly share unfavorable written, audio
or video information related to the company or any of its employees or customers should not
have any expectation of privacy, and may be subject to investigation and possibly discipline….”
The Regional Director notes in his Report and Recommendation on Objections that the 25
Petitioner claims in its objections that these rules are overbroad because they limit the
interaction of employees with each other and with parents and public officials who use the
Employer’s services. More specifically, in his post-hearing brief, counsel for the Union
characterizes the Employer’s policy as “outrageously overbroad.”
30
In determining whether the existence of specific work rules violates the Act, and, by
analogy, is objectionable, the Board has held that, “the appropriate inquiry is whether the rules
would reasonably tend to chill employees in the exercise of their Section 7 rights.” Lafayette
Park Hotel, 326 NLRB 824, 825 (1998), enfd. 203 F.3d 52 (D.C. Cir 1999). Further, where rules
are likely to have a chilling effect on Section 7 rights, “the Board may conclude that their 35
maintenance is an unfair labor practice, even absent evidence of enforcement.” Id. See also,
Blue Cross-Blue Shield of Alabama, 225 NLRB 1217, 1220 (1976).
The Board has further refined the above standard in Lutheran Heritage Village-Livonia,
343 NLRB 646, 646 (2004), by creating a two-step inquiry for determining whether the 40
maintenance of a rule violates the Act. First, if the rule expressly restricts Section 7 activity, it is
clearly unlawful. If the rule does not, it will none-the-less violate the Act upon a showing that:
“(1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the
rule was promulgated in response to union activity; or (3) the rule has been applied to restrict
the exercise of Section 7 rights.” Id., at 647; See Northwestern Land Services, Ltd., 325 NLRB 45
744 (2009) (applying the Board’s standard in Lutheran Heritage Village Livonia, supra at 647).
Further, the Board has held that “[t]he test of whether a statement is unlawful is whether
the words could reasonably be construed as coercive, whether or not that is the only reasonable
construction.” Double D Construction Group, Inc., 339 NLRB 303, 304 (2003). Even if a rule is 50
ambiguous, any ambiguity in a work rule that may restrict protected concerted conduct “must be
construed against the [employer] as the promulgator of the rule.” Ark Las Vegas Restaurant,
JD(SF)–08–13
16
343 NLRB 1281, 1282 (2004) (an ambiguity in a “no-loitering “rule construed against the
employer). See also Norris/O’Bannon, 307 NLRB 1236, 1245 (1992).
Under the Board’s case law, several provisions in the Employer’s “Social Networking
Policy” are unlawful as they “would reasonably tend to chill employees in the exercise of their 5
Section 7 rights.” Lafayette Park Hotel, 326 NLRB at 825. While the policy does not explicitly
restrict Section 7 protected activity, it contains no limiting language whatsoever, and is so
overbroad that it could reasonably be construed as extending to Section 7 activity. Lutheran
Heritage Village-Livonia, 343 NLRB 646, 647.
10
Advising employees to “limit contact with parents or school officials,” and to “keep all
contact appropriate,” as well as saying that “communication with coworkers should be kept
professional and respectful, even outside work hours,” and warning that “employees who
publicly share unfavorable …information related to the company or any of its employees or
customers…may be subject to investigation and possibly discipline” without indicating what the 15
Employer considers appropriate or inappropriate conduct, or what is considered professional
and respectful, or what constitutes unfavorable information is, in my view, unreasonably broad
and vague. Employees could reasonably interpret this policy language as restraining them in
their Section 7 right to communicate freely with fellow employees and others regarding work
issues and for their mutual aid and protection. Double D Construction Group, supra. Further, to 20
the extent that the policy is ambiguous or vague, it must be construed against the Employer, as
the promulgator of the rule. Ark Las Vegas Restaurant, supra.
While I conclude that the Social Networking Policy in question is on its face coercive of
Section 7 rights, it should be noted that during the hearing General Manager Mahler testified 25
that employees who violated the policy would be subject to discipline. However, no evidence
was offered as to any specific instances of such discipline. In any event, the mere maintenance
of the policy language would have a reasonable tendency to chill or otherwise interfere with,
restrain, and coerce the pro-union campaign activities of employees during the election period.
Jurys Boston Hotel, supra. Accordingly, I find merit to this portion of objection number 5. 30
Recommendation on Election
In summary, I have found merit in objections number 2 and 3, whereby the Employer
terminated Helen Cheesman and informed her of that termination because of her union activity, 35
and in order to prevent her from voting in the representation election, and in order to restrain
employees from supporting the Union and from voting in the election. Further, I concluded that
the Employer, as a pretext for terminating Cheesman, allegedly changed its policy regarding
bus drivers whose driving certifications lapsed. I also found merit in objections number 4 and 6,
whereby the Employer’s conduct in informing Cheesman of her termination on the very day of 40
the election and in the vicinity or presence of other potential voters interfered with the laboratory
conditions of the election. Finally, I found merit to that portion of objection number 5, whereby
the Employer maintained rules on “off-duty solicitation” and “social networking” that restrained
and coerced employees in the exercise of their Section 7 activity during the election period.
45
I have also found merit to the unfair labor practice allegations in complaint paragraphs 6,
7, and 9 that the Employer violated Section 8(a)(3) and (1) of the Act and in complaint
paragraphs 6, 7, and 8 that the Employer violated Section 8(a)(1) of the Act, whereby it
terminated Cheesman and informed her of the termination on the day of the election and in the
presence and vicinity of potential voters because of her union activity and in an effort to 50
dissuade employees from voting in the election. In so finding, I concluded that the Employer’s
JD(SF)–08–13
17
conduct occurred during the “critical period” between the filing of the representation petition and
the election.
It is well settled that conduct during the critical period that creates an atmosphere
rendering improbable a free choice warrants invalidating an election. See General Shoe Corp., 5
77 NLRB 124 (1948). Such conduct is sufficient if it creates an atmosphere calculated to
prevent a free and untrammeled choice by the employees. As the Board stated, “In election
proceedings, it is the Board’s function to provide a laboratory in which an experiment may be
conducted under conditions as nearly ideal as possible, to determine the uninhibited desires of
the employees.” Id., at 127.10
I have found that the Respondent has committed significant unfair labor practices during
the critical period, some occurring on the very day of the election, which unfair labor practices
also constituted objectionable conduct. The Board has traditionally held that conduct violative of
Section 8(a)(1) and (3) of the Act is also conduct which interferes with the exercise of a free and 15
untrammeled choice in an election. As such, it serves as a basis for invalidating an election.
According to the Board, conduct which is violative of Section 8(a)(1) and (3) of the Act is “a
fortiori conduct which interferes with the exercise of a free and untrammeled choice in an
election.” Playskool Mfg. Co., 140 NLRB 1417 (1963); see also IRIS U.S. A., Inc., 336 NLRB
1013 (2001); Diamond Walnut Growers, Inc., 326 NLRB 28 (1988). Further, the Board has held 20
that this is also so “because the test of conduct which may interfere with the ‘laboratory
conditions’ for an election is considerably more restrictive than the test of conduct which
amounts to interference, restraint, or coercion which violates Section 8(a)(1).” Dal-Tex Optical
Co., 137 NLRB 1782 (1962). See also Overnite Transportation Co., 158 NLRB 879 (1966);
Excelsior Underwear, 156 NLRB 1236 (1966).25
However, not all unfair labor practice conduct will warrant setting aside an election. In
Caron International, 246 NLRB 1120 (1979), the Board rejected a per se approach to the fortiori
language of Playskool. Instead, the Board said that the test was an objective one, that being
whether the conduct has a tendency to interfere with employees’ free choice. Hopkins Nursing 30
Care Center, 309 NLRB 958 (1992). See also Recycle America, 310 NLRB 629 (1993) (where
the Board found that the unfair labor practices were not sufficient to set aside the election).
The Board weighs a number of factors in determining whether Section 8(a)(1) violations
of the Act, and presumably separate objectionable conduct as well, are sufficient to warrant 35
setting aside an election. In the face of unfair labor practices and meritorious objections, the
Board may still decline to overturn the results of an election where it concludes that the
violations and/or conduct are de minimis. Bon Appetit Management Co., 334 NLRB 1042
(2001); Caron International, Inc., 246 NLRB 1120 (1979). Still, Section 8(a)(1) violations fall
within the de minimis exception only when these violations “are such that it is virtually 40
impossible to conclude that they could have affected the results of the election.” Super Thrift
Markets, 233 NLRB 409, 409 (1977), cited in Sea Breeze Health Care Center, 331 NLRB 1131
(2000).
In determining whether the misconduct could have affected the results of the election, 45
the Board considers “the number of violations, their severity, the extent of dissemination, the
size of the unit, and other relevant factors.” Clark Equipment Co., 278 NLRB 498, 505 (1986);
Avis Rent-a-Car, 280 NLRB 580, 581 (1986); Chicago Metallic Corp., 273 NLRB 1677, 1704
(1985). Regarding those factors, several are of particular importance in considering those
objections and unfair labor practices before me that I have determined to have merit. This was 50
JD(SF)–08–13
18
an extremely close election, with the vote being 54 cast against the Petitioner and 52 votes cast
for the Petitioner.11 The Board has held that in a close election the objectionable and/or
unlawful conduct need not be as severe or have affected as many employees in order to
warrant setting aside the election. The narrowness of the vote in an election is a relevant
consideration. Robert Orr-Sysco Food Services, 338 NLRB 614 (2002); Cambridge Tool & Mfg. 5
Co., 316 NLRB 716 (1995); also see Avis Rent-a-Car, supra.
In the matter before me, not only was the election very close, but the Employer’s unfair
labor practices and objectionable conduct were particularly egregious. I have found that the
improper conduct was committed during the critical period, and, in fact, some on the actual day 10
of the election. On March 6, only 3 days before the election, the Employer terminated Helen
Cheesman, a very active union supporter. However, Cheesman did not become aware of her
termination until she was so informed by General Manager Mahler, who was the highest official
at the Employer’s facility. Cheesman was literally on her way to vote when she stopped by
Mahler’s office and received the news of her termination. Further, when she subsequently 15
arrived at the polling place she was again informed of her termination when alerted that her
ballot was being challenged by the Employer’s observer allegedly because she was no longer
an employee of Durham. Not only was this news conveyed to Cheesman in the presence of
other potential voters, but shortly thereafter, while the polls remained open, other potential
voters learned that Cheesman had been terminated when she asked a group of drivers 20
congregated in the company yard whether they had ever heard of any driver being terminated
because his/her certification had lapsed. They had not.
I have concluded that Cheesman’s termination was unlawful, and, in fact, that the
alleged change in the Employer’s policy on drivers with lapsed certifications was nothing more 25
than a pretext intended to be used to justify Cheesman’s termination. The news that a strong
union supporter had been terminated for a reason that employees knew, based on past
practice, was highly suspect could reasonably have caused potential voters to either not vote or
to change their intended election choice. Further, the Employer’s maintenance of rules that
contained overly broad, discriminatory, and improper language regarding off-duty employee 30
access to the company facility and social networking policies, which rules were in effect during
the critical period, had a reasonable tendency to chill or otherwise interfere with pro-union
campaign activities of employees.
These were significant unfair labor practices and objectionable conduct, which would 35
clearly have had a tendency to seriously inhibit the employees’ willingness to engage in union
activity, and would likely have created an atmosphere unconductive to a free and untrammeled
choice by the employees. The Employer’s conduct destroyed the laboratory conditions required
by the Board.
40
Based on the above, I conclude that the objectionable conduct and unfair labor practices
engaged in by the Employer have tended to interfere with the free and fair choice of a
determinative number of voting unit employees. Accordingly, as the election results do not
reflect the employees’ free and fair choice, I recommend that the election be set aside and that
this proceeding be remanded to the Regional Director for Region 32 for the purpose of 45
conducting a rerun election.

11 Two challenged ballots were insufficient to affect the results of the election.
JD(SF)–08–13
19
Conclusions of Law
1. The Respondent, Durham School Services, L.P., is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the Act.
5
2. The Union, Freight, Construction and General Drivers, Warehousemen & Helpers-
Teamsters Union Local No. 287, a/w International Brotherhood of Teamsters, Change to Win, is
a labor organization within the meaning of Section 2(5) of the Act.
3. By the following acts and conduct the Respondent has violated Section 8(a)(3) and (1) 10
of the Act:
(a) Discharging its employee Helen Cheesman because she engaged in union activity
and to discourage her from voting in the representation election;
15
(b) Orally informing Helen Cheesman that she had been discharged in order to
discourage her from voting in the representation election and from engaging in union activity.
4. By the following acts and conduct the Respondent has violated Section 8(a)(1) of the
Act:20
(a) Orally informing Helen Cheesman that she had been discharged in order to
discourage other employees from voting in the representation election and from engaging in
union activity.
25
5. The above unfair labor practices affect commerce within the meaning of Section 2(6)
and (7) of the Act.
Remedy
30
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.12
The Respondent shall be required to post a notice that assures its employee that it will 35
respect their rights under the Act. In addition to physically posting of paper notices, notices
shall be distributed electronically, such as by email, posting on an intranet or internet site,
and/or other electronic means, if the Respondent customarily communicates with its employees
by such means. J. Picini Flooring, 356 NLRB No. 9 (2010).
40
Further, as indicated above, I have found that the Respondent engaged in both
objectionable conduct and unfair labor practices affecting the results of the election in Case 32-

12 Since Helen Cheesman did not actually lose any income, seniority, or other fringe benefits
during the period of time that she was listed as terminated on the Respondent’s books and
records, as her certification to drive a school bus had lapsed, no back pay or other make whole
remedy is required. Also, although the objections to the election raised by the Union, and found
to have merit, included the claim that certain provisions in the Respondent’s Employee
Handbook and Addendum were overly broad and discriminatory, no language revision remedy
is being ordered herein, as no similar unfair labor practice allegation has been made.
JD(SF)–08–13
20
RC-066466. I recommend, therefore, that the election in this case held on March 9, 2012, be
set aside, that a new election be held at a date and time to be determined in the discretion of
the Regional Director for Region 32, and that the Regional Director include in the Notice of
Election the following language.
5
NOTICE TO ALL VOTERS
The election held on March 9, 2012, was set aside because the National Labor Relations
Board found that certain conduct of the Employer interfered with the employees’ free
exercise of a free and reasoned choice. Therefore, a new election will be held in 10
accordance with the terms of this Notice of Election. All eligible voters should understand
that the National Labor Relations Act gives them the right to cast ballots as they see fit and
protects them in the exercise of this right free from interference by any of the parties.13
On these findings of fact and conclusions of law and on the entire record, I issue the 15
following recommended14
ORDER
The Respondent, Durham School Services, L.P., it officers, agents, successors, and 20
assigns, shall
1. Cease and desist from:
(a) Discharging its employees because they engaged in union or other protected 25
concerted activity and/or to discourage them from voting in a representation election;
(b) Orally informing its employees that they had been discharged in order to discourage
them from voting in a representation election or from engaging in union and/or other protected
concerted activity; and 30
(c) In any like or related manner, interfering with, restraining, or coercing its employees
in the exercise of the rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act:35
(a) Within 14 days from the date of the Board’s Order, remove from its files any
reference to the unlawful discharge of Helen Cheesman and/or that she had abandoned her job,
and within 3 days thereafter, notify her in writing that this has been done, and that her discharge
will not be used against her as the basis of any future personnel actions, or referred to in 40
response to any inquiry from any employer, employment agency, unemployment insurance
office, reference seeker, or otherwise used against her;
(b) Within 14 days after service by the Region, post at its facility in Campbell, California
copies of the attached notice marked “Appendix.”15 Copies of the notice, on forms provided by 45

13 Lufkin Rule Co., 147 NLRB 341 (1964).
14 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
JD(SF)–08–13
21
the Regional Director for Region 32, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to employees are customarily posted. In
addition to physically 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 5
Respondent 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
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 10
employees and former employees employed by the Respondent at any time since March 6,
2012; and
(c) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that 15
the Respondent has taken to comply.
IT IS FURTHER ORDERED that the Regional Director for Region 32 shall set aside the
representation election in Case 32-RC-066466, and that a new election shall be conducted at a
date and time to be determined in the discretion of the Regional Director.20
Dated at Washington, D.C. February 11, 2013
25
_______________________
Gregory Z. Meyerson
Administrative Law Judge
_________________________
15 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 United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
JD(SF)–08–13
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 violated 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 benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT do anything that interferes with these rights. Specifically:
WE WILL NOT discharge and/or inform employees that they have been discharged because
they joined or assisted Freight, Construction and General Drivers, Warehousemen & Helpers-
Teamsters Union Local No. 287, a/w International Brotherhood of Teamsters, Change to Win
(the Union) and/or in order to discourage or prevent them from voting in the National Labor
Relations Board representation election.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Federal labor law, including the right to vote for the
Union, or any union, to represent you in collective bargaining with us.
WE WILL, within 14 days from the date of the Board’s Order, remove from out files any
reference to the unlawful discharge of Helen Cheesman and/or any reference that she had
abandoned her job, and WE WILL, within 3 days thereafter, notify Helen Cheesman in writing
that we have taken this action, and that the materials removed will not be used as a basis for
any future personnel action against her or referred to in response to any inquiry from any
employer, employment agency, unemployment insurance office, or reference seeker, or
otherwise used against her.
DURHAM SCHOOL SEVICES, L.P.
________________________________________
(Employer)
Dated _____________ By ________________________________________
(Representative) (Title)
JD(SF)–08–13
The National Labor Relations Board is an independent Federal agency created in 1935 to
enforce the National Labor Relations Act. It conducts secret-ballot elections to determine
whether employees want union representation and it investigates and remedies unfair labor
practices by employers and unions. To find out more about your rights under the Act and how to
file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website:
www.nlrb.gov.
1301 Clay Street, Federal Building, Room 300N
Oakland, California 94612-5211
Hours: 8:30 a.m. to 5 p.m.
510-637-3300.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF
POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS
PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 510-637-3270.