First Student, Inc.

National Labor Relations Board - Administrative Judge Opinions

Feb 4, 2013

19-CA-090217 (N.L.R.B. Feb. 4, 2013)

JD(NY)–05-13
Seattle, WA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
FIRST STUDENT, INC.
and Case Nos. 19-CA-090217
19-RC-082833
GENERAL TEAMSTERS LOCAL UNION
NO. 174, Affiliated with the INTERNATIONAL
BROTHERHOOD OF TEAMSTERS
Anne-Marie Skov, Esq., Counsel for the General Counsel.
Danielle Franco-Malone, Esq., Schwerin Campbell Barnard Iglitzin & Lavitt, LLP, Counsel for
Charging Party-Petitioner.
Patrick Domholdt, Esq., Counsel for the Respondent-Employer.
DECISION
Statement of the Case
Joel P. Biblowitz, Administrative Law Judge: This case was heard by me on January
8, 2013 in Seattle, Washington. The Consolidated Complaint herein, which issued on
November 21, 20121, was based upon an unfair labor practice charge that was filed on
September 27 by General Teamsters Local Union No. 174, affiliated with the International
Brotherhood of Teamsters, herein called the Union, which also filed Objections on September
25. In addition, a Report and Recommendation on Objections and Direction of Hearing was
issued by the Board’s Regional Office on November 21. It is alleged that, in about August, First
Student, Inc., herein called Respondent, withheld wage increases for its Seattle area school bus
drivers at Step 9 of its wage scale, and on about September 14, told its employees that the
wage increases for its employees at Step 9 of its wage scale were being withheld because the
employees had joined and assisted the Union, or engaged in other protected concerted
activities. This was also the basis of the Union’s objections, which are also before me pursuant
to the Report and Recommendation on Objections. The Union’s objections also allege that the
election results should be overturned because “Anti-Union advocates physically and verbally
intimidated voters at the polling place.” This objection is not alleged as an unfair labor practice.
I. Jurisdiction and Labor Organization Status
Respondent admits, and I find, that it has been an employer engaged in commerce
within the meaning of Section 2(2), (6) and (7) of the Act and that the Union has been a labor
organization within the meaning of Section 2(5) of the Act.
II. The Facts
On June 11, the Union filed a Petition to represent all school bus drivers employed by
the Respondent in Seattle, Washington. On June 22, the Regional Director approved a
Stipulated Election Agreement in the following unit:

1 Unless stated otherwise, all dates referred to herein relate to the year 2012
JD(NY)–05-13

5
10
15
20
25
30
35
40
45
50
2
All full-time and regular part-time school bus drivers employed by the Employer in
Seattle, Washington; but excluding all other employees, office clerical employees, and
guards and supervisors as defined in the Act.
The Tally of Ballots at the election conducted on September 18 showed the following:
Approximate number of eligible voters………………417
Void ballots………………………………………………..2
Votes cast for Petitioner………………………………154
Votes cast against participating labor organization..168
Challenged ballots……………………………………….4
The challenged ballots are insufficient to affect the results of the election.
On September 25 the Union filed timely objections to the election and to conduct allegedly
affecting the results of the election. The objections were:
1. The Employer failed to give eligible voters raises they would normally have received,
in violation of Section 8(a)(1)(3).
2. The Employer blamed the Union and the election for its unlawful failure to give annual
raises, in violation of Section 8(a)(1).
3. Eligible voters were intimidated into not voting or voting against the Union.
4. Anti-Union advocates physically and verbally intimidated voters at the polling place.
The Respondent has the contract to transport school children in the City of Seattle, and
has done so for many years. Its pay scale has nine steps and drivers advance one step for each
year that he/she is employed by the Respondent. The first eight steps have specific wage
increases while the Step 9 wage increase fluctuated from year to year depending on a number
of factors, including the economic situation and Respondent’s contract with the city. Over the
past seven years, the Step 9 drivers have received wage increases every year ranging from
twenty five to forty five cents hourly, and have received these wage increases prior to the
beginning of the school year, shortly prior to September 1. There are currently one hundred
sixty eight Step 9 bus drivers in the unit.
Prior to the beginning of the school year, the Respondent gave its Step 1 through Step 8
school bus drivers the traditional hourly wage increase granted in the past. No wage increase
was given to the Step 9 drivers. Instead, they received the following letter from the Respondent:
Seattle Driver Wage Increases
We have received many questions from employees who are at the top of the current
wage scale regarding why they did not get an increase in their pay at the start of this
school year.
The reason for this is because the company is prohibited by federal law from making
unilateral changes to the current pay scale when there is a union election pending. We
were unable to change the already existing top pay rate. Employees who were not at the
top of the wage scale were advanced to the next step on the scale because those steps
were already established. We apologize for this however, we want you to be informed of
the reasons.
We hope this answers any questions regarding the wage increases. Please see your
JD(NY)–05-13

5
10
15
20
25
30
35
40
45
50
3
manager if you should have any further questions and/or concerns.
The remaining objection relates to certain actions by two employees during the election.
Charles Martineau, employed by the Respondent as a standby driver, was the Union observer
at one of the election locations. He testified that during the morning session of the election, two
unit employees, school bus driver Patty Bentley, and special ed driver, Diane Rosenberg, came
to vote and were disruptive to all those who were present in the room at the time. While in the
voting area, in the presence of other employees waiting to vote, they, initially refused to give the
Board agent their names, marked their ballots openly, rather than doing so in the voting booth
as they were instructed to do by the Board agent, “slammed” their ballots into the ballot box and,
in a loud voice, made derogatory and obscene comments about the Union, and said that the
employees did not need the Union. Further, the Board agent had to ask them to leave the area
on a number of occasions. During this period, there were from two to eight other voters in the
room waiting to vote.
III. Analysis
It is alleged that the actions of Bentley and Rosenberg affected the results of the
election. During the morning session at one of the election locations, with other voters present,
they refused to give their names, made negative and obscene comments about the Union,
marked their ballots with a No vote in full view of those present rather than voting in the voting
booth as they were asked to do, and refused to leave the area when asked by the Board agent.
I begin with the proposition that when the election results are close, as is true herein where the
Union lost the election by fourteen votes out of three hundred twenty two ballots cast, the
objections must be carefully scrutinized. Cambridge Tool & Mfg. Co. 316 NLRB 716 (1995);
Colquest Energy, Inc. v. NLRB, 965 F.2d 116, 122 (6th Cir. 1992). In these situations, the initial
inquiry is whether the allegedly objectionable statements were made by agents of either the
union or the employer, or if they were made by a third-party, not an agent of either party, and
the burden of establishing an agency relationship is on the party asserting its existence. Millard
Processing Services, 304 NLRB 770, 771 (1991). The Board has long held that it will not set
aside an election based on third-party threats unless the objecting party establishes that the
conduct was “so aggravated as to create a general atmosphere of fear and reprisal rendering a
free election impossible.” Westwood Horizons Hotel, 270 NLRB 802, 803 (1984); Robert Orr-
Sysco Food Services, LLC, 338 NLRB 614 (2002); Mastec North America, Inc., 356 NLRB No.
110 (2011).
As there is no evidence that either Bentley or Rosenberg are agents of the Respondent,
their actions are to be judged under the third-party standard as set forth in Westwood, supra.
While their actions were clearly obnoxious, rude and childlike, they did not reach the level of
being so serious as to create a general atmosphere of fear and coercion. NLRB v. Precision
Indoor Comfort, Inc., 456 F.3d 636 (6th Cir. 2006). I therefore recommend that Objections 3 and
4 be overruled.
As regards Objections 1 and 2, and the Complaint allegations that the Respondent
violated Section 8(a)(1)(3) of the Act by not granting the wage increase to its Step 9 drivers, and
telling them that it was withholding the increase because of the upcoming Union election, the
evidence establishes that in the past all drivers received yearly increases on or shortly prior to
the beginning of the school year. Although the Step 9 drivers did not receive a set wage
increase each year, unlike the drivers at the lower levels who receive established wage
increases yearly, they did receive an increase, ranging from twenty five cents to forty five cents
hourly from 2005 to 2012. Further, the Respondent’s explanation for the lack of an increase for
the Step 9 drivers was that Federal Law prohibited them “…from making unilateral changes to
JD(NY)–05-13

5
10
15
20
25
30
35
40
45
50
4
the current pay scale when there is a union election pending.” That is clearly not the law.
Rather, the law is that an employer must act in the same manner as if the union and an election
were not in the picture. As the Board stated in Lampi, LLC, 322 NLRB 502 (1996):
It is well established that the mere grant of benefits during the critical period is not, per
se, grounds for setting aside an election. Rather, the critical inquiry is whether the
benefits were granted for the purpose of influencing the employees’ vote in the election
and were of a type reasonably calculated to have that effect. As a general rule, an
employer’s legal duty in deciding whether to grant benefits while a representation
proceeding is pending is to decide that question precisely as it would if the union were
not on the scene. In determining whether a grant of benefits is objectionable, the Board
has drawn the inference that benefits that are granted during the critical period are
coercive, but it has allowed the employer to rebut the inference by coming forward with
an explanation, other than a pending election, for the timing of the grant or
announcement of such benefits.
In Noah’s Bay Area Bagels, LLC, 331 NLRB 188, 189 (2000), the Board provided further
guidance in these cases:
Further, while an employer is not permitted to tell employees that it is withholding
benefits because of a pending election, it may, in order to avoid creating the appearance
of interfering with the election, tell employees that implementation of expected benefits
will be deferred until after the election-regardless of the outcome.
Employers in these situation often allege that they are caught between the proverbial “rock and
a hard place,” but that is not so. As the Court stated in NLRB v. Otis Hospital, 545 F.2d 252, 255
(1st Cir. 1976): “ Neither granting nor withholding a wage increase has been declared illegal per
se. It becomes so only if the employer is found to be manipulating benefits in order to influence
his employees’ decision during the union organizing campaign.”
There can be no doubt that by withholding the wage increase for the Step 9 drivers, and
by blaming the Union for its failure to grant the increase, rather than by stating that they were
deferring the increase until after the election, as stated by the Board in Noah’s, supra, the
Respondent violated Section 8(a)(1)(3) of the Act, and interfered with the employees’ free
choice in the election. Dorn Transportation Company, Inc., 168 NLRB 457 (1967); The Gates
Rubber Company, 182 NLRB 95 (1970). Accordingly, I recommend that Objections 1 and 2 be
sustained, that the election conducted on September 18, 2012 be set aside, and that a new
election be held.
Conclusions of Law
1. The Respondent has been an employer engaged in commerce within the meaning of
Section 2(2), (6) and (7) of the Act.
2. The Union is, and has been, a labor organization within the meaning of Section 2(5) of
the Act.
3. By withholding its annual wage increase to its Step 9 school bus drivers, and blaming
it on the pending union election, the Respondent violated Section 8(a)(1)(3) of the Act.
4. Based upon the Respondent’s actions described above, I recommend that the Union’s
Objections 1 and 2 be sustained, the election conducted on September 18, 2012 be set aside,
JD(NY)–05-13

5
10
15
20
25
30
35
40
45
50
5
and a new election be conducted.
The Remedy
Having found that the Respondent has violated Section 8(a)(1)(3) of the Act and has
interfered with the employees’ free choice in the election conducted on September 18, 2012, in
addition to recommending that the election be set aside and that a new election be conducted, I
recommend that the Respondent be ordered to reimburse all of its Step 9 school bus drivers for
the losses that they suffered as a result of its decision to withhold their yearly wage increase
effective in about mid August, 2012, if they have not already done so2, and to post the attached
Notice to that effect. The amount paid to each Step 9 driver shall include interest as computed
in New Horizons for the Retarded, 283 NLRB 1173 (1987), compounded daily as prescribed in
Kentucky River Medical Center, 356 NLRB No. 8 (2010), enf. denied on other grounds sub.
nom., Jackson Hospital Corp. v. NLRB, 647 F. 3d 1137 (D.C. Cir. 2011). I shall also order the
Respondent to file a special report with the Social Security Administration allocating the
employees’ back wages to the appropriate calendar quarters and to compensate the employees
for any adverse income tax consequences of receiving these back wages in one lump sum
backpay awards covering periods longer than 1 year, Latino Express, Inc., 359 NLRB No. 44
(2012).
Upon the foregoing findings of fact, conclusions of law, and on the entire record, I hereby
issue the following recommended3
ORDER
The Respondent, First Student, Inc., its officers, agents, successors and assigns, shall:
1. Cease and desist from
(a) Telling the Step 9 drivers that their regular yearly wage increase could not be given
because of the pending union election.
(b) Withholding and refusing to pay a regularly scheduled wage increase because its
employees had engaged in union activity.
(c) In any like or related manner, interfere with, restrain or coerce employees in the
exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action:

2 At the conclusion of the hearing herein, Respondent stated that about a week before this
hearing it prepared a letter to be sent to all of the Step 9 drivers in Seattle, telling them that the
Respondent would be giving them the wage increase, retroactive to the middle of August, when
the lower level employees received their wage increase, and that they expected that the letter
would be sent either the day of the hearing or the following day.
3 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(NY)–05-13

5
10
15
20
25
30
35
40
45
50
6
(a) Pay to its Step 9 drivers the wage increase that was withheld from them in mid
August 2012, in the manner set forth in the section of this Decision entitled “Remedy.”
(b) 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 designated 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, necessary to analyze the amount of backpay due under the terms of this
Order.
(c) Within 14 days after service by the Region, post at each of its facilities in Seattle,
Washington, copies of the attached notice marked “Appendix.”4 Copies of the notice, on forms
provided by the Regional Director for 19, 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.
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 employees and former employees employed by the Respondent at any time since
August 15, 2012.
(d) 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
the Respondent has taken to comply.
IT IS FURTHER ORDERED that the result of the election conducted on September 18, 2012 is
hereby set aside, and that this matter be remanded to the Regional Director for Region 19 to
take the appropriate action pursuant to this Decision.
Dated, Washington, D.C. February 4, 2013
_______________________________
Joel P. Biblowitz
Administrative Law Judge

4 If this Order is enforced by a judgment of a United States court of appeals, the words in the
notice reading “Posted by Order of the 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(NY)–05-13

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 withhold wage increases from our employees because of a pending union
election or because the employees engaged in activities in support of a union, and WE WILL
NOT tell our employees that they will not receive a wage increase because of a pending union
election.
WE WILL make our employees whole for any loss of earnings and other benefits resulting from
their discharge, less any net interim earnings, plus interest compounded daily.
WE WILL file a report with the Social Security Administration allocating backpay to the
appropriate calendar quarters.
WE WILL compensate our employees for the adverse tax consequences, if any, of receiving
one or more lump-sum backpay awards covering periods longer than 1 year.
WE WILL NOT in any like or related manner interfere with, restrain or coerce our employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
WE WILL pay our Step 9 drivers the wage increase that was due them in August 2012, with
interest and make them whole for the loss that they suffered when we withheld this wage
increase in August 2012.
FIRST STUDENT, INC.
Dated_______________ By__________________________________________________
(Representative) (Title)
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.
JD(NY)–05-13

915 2nd Avenue, Federal Building, Room 2948
Seattle, Washington 98174-1078
Hours: 8:15 a.m. to 4:45 p.m.
206-220-6300.
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, 206-220-6284.