MV Transit and/or MV Transportation, Inc.

National Labor Relations Board - Administrative Judge Opinions

Jan 9, 2019

16-CA-110465 (N.L.R.B. Jan. 9, 2019)

JD–01–19
Austin, TX
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
MV TRANSIT AND/OR MV TRANSPORTATION, INC.
and Case 16–CA–110465
AMALGAMATED TRANSIT UNION, LOCAL 1091
(ATU LOCAL 1091)
Bryan Dooley and Roberto Perez, Esqs.,
for the General Counsel.
Kerry Martin, Esq.,
for the Respondent.
Glenda Pittman, Esq.,
for the Charging Party.
DECISION
GEOFFREY CARTER, Administrative Law Judge. In this case, the General Counsel
asserts that MV Transit and/or MV Transportation, Inc. (Respondent) violated the National
Labor Relations Act (the Act) by unilaterally deciding not to make retirement contributions for
the benefit of bargaining unit employees, without first notifying the Amalgamated Transit Union,
Local 1091 (the Union) and providing an opportunity to bargain about that decision and its
effects. In support of that complaint allegation, the General Counsel maintains that Respondent
was obligated to make the retirement contributions because Respondent is a “perfectly clear”
successor, and/or because Respondent is an ordinary successor and implicitly led bargaining unit
employees to believe that their retirement benefits would not be changed. Respondent contends
the complaint allegation here is time-barred under Section 10(b) of the Act, and asserts that in
any event, it was not obligated to make retirement contributions while it negotiated with the
Union about the terms of a new retirement plan.
As explained below, I have found that Respondent indeed was obligated to make the
disputed retirement contributions as a “perfectly clear” successor and/or ordinary successor. I
also have found that by unilaterally deciding not to make the retirement contributions from
August 19, 2012, to April 28, 2014, without first notifying the Union and providing an
opportunity to bargain about that decision and its effects, Respondent violated Section 8(a)(5)
and (1) of the Act.
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2
STATEMENT OF THE CASE
This case was tried in Austin, Texas, from August 27–29, 2018. The Union filed the
unfair labor practices charge in this case on August 1, 2013.1 On November 27, 2013, the 5
Region deferred further proceedings on the charge to provide an opportunity for Respondent and
the Union to resolve the dispute through the grievance-arbitration process. On or about October
6, 2017, however, the Region learned that Respondent withdrew its consent to arbitrate the
grievance underlying this case. In light of that development, the Region revoked its decision to
defer this case, and resumed processing the unfair labor practices charge. (GC Exh. 1(c), (f).) 10
The General Counsel subsequently issued the complaint in this case on February 27, 2018.
In the complaint, the General Counsel alleges that Respondent violated Section 8(a)(5)
and (1) of the Act by, from about August 19, 2012, to April 11, 2014, ceasing providing
employees with retirement benefits/and or retirement contributions (and not providing any 15
substitute retirement benefits and/or retirement contributions) without first notifying the Union
and affording an opportunity to bargain about these decisions and their effects. Respondent filed
timely answers denying the alleged violations in the complaint.
On the entire record,2 including my observation of the demeanor of the witnesses, and 20
after considering the briefs filed by the General Counsel, Union and Respondent, I make the
following

1 All dates are in 2013, unless otherwise indicated.
2 The transcripts and exhibits in this case generally are accurate. However, I hereby make the
following corrections to the trial transcripts, which incorporate several corrections proposed by the Union
in a motion to correct transcript: p. 12, l. 21: “burned” should be “Burns”; p. 14, l. 6: “proposal” should
be “proposed”; p. 14, l. 25: “burn” should be “Burns” and “waited” should be “waived”; p. 37, l. 1:
“repeat” should be “replace”; p. 37, l. 2: “during” should be “during the”; p. 37, l. 4: “are” should be “of
the” and “applied” should be “apply”; p. 38, l. 11: “Contracts” should be “contractor”; p. 57, l. 3: “days”
should be “dues”; p. 61, l. 11: “HUW” should be “H & W”; p. 64, l. 17: “HU” should be “ATU”; p. 65, l.
9: “thought” should be “font”; p. 69, l. 8: “HU” should be “ATU”; p. 79, l. 24: “threat” should be
“thread”; p. 89, l. 3: “CB” should be “DB”; p. 97, l. 4: “they set” should be “says that”; p. 117, ll. 19 and
24: “burn” should be “Burns”; p. 120, l. 25: “DV paying” should be “defined benefit”; p. 121, l. 4:
Attorney Dooley was the speaker; p. 141, l. 6: “She answered. She knows.” should be “She can answer if
she knows.”; p. 144, l. 11–12: “a contract to provide by way for time and” should be “a contractor to
provide by way of retirement”; p. 149, l. 2: “tenant” should be “tentative”; p. 152, l. 20: “times” should
be “terms”; p. 153, ll. 22–23: “we’ll hear about it or any violation” should be “we’re here about an NLRA
violation”; pp. 156–177, throughout: Attorney Perez posed the questions during direct examination; p.
164, l. 1: “actual” should be “Financial”; p. 175, l. 4: “President” should be “present”; p. 233, l. 12: “then
I’ll” should be “that will”; p. 247, l. 17: “compliant” should be “complaint”; p. 251, ll. 9–10: “leaves”
should be “leaps” and “theater” should be “theory”; p. 254, l. 2: Counsel for the General Counsel or the
Union was the speaker; p. 255, l. 4: Attorney Perez was the speaker; p. 259, l. 1: “mutual” should be
“neutral”; p. 265, l. 3: “retry” should be “require”; p. 265, l. 21: “Yes, the characterization” should be
“Object to the mischaracterization”; p. 268, l. 6: “reader” should be “redirect”; p. 285, l. 4: “chamber”
should be “chain”; p. 285, l. 12: “allegations” should be “obligations”; p. 285, l. 14: “entire” should be
“retirement”; p. 290, l. 1: “10(b)” should be “MV”; p. 290, l. 3: “unit” should be “Union”; p. 292, l. 21:
“MF” should be “MV”; p. 302, l. 25: “MB” should be “MV”; p. 307, l. 6: “widgets” should be “wages”;
JD–01–19
3
FINDINGS OF FACT3
I. JURISDICTION
5
Respondent, a corporation with an office and place of business in Austin, Texas, engages
in the business of operating transportation services, including bus services. In the 12–month
period ending August 1, 2013, Respondent derived gross revenues in excess of $250,000, and
purchased and received goods at its Austin, Texas facility that are valued in excess of $5,000.
Respondent admits, and I find, that Respondent is an employer engaged in commerce within the 10
meaning of Section 2(2), (6), and (7) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background15
1. Capital Metro, StarTran and the Union
Since 1985, Capital Metro has been the public agency that contracts out the fixed route
and paratransit public transportation in and around Austin, Texas.4 Beginning in or about 1990, 20
Capital Metro relied on an in-house contractor, StarTran, to provide paratransit services.
StarTran generally depended on Capital Metro for its funding, and essentially was an
agency/instrumentality of Capital Metro. (R. Exh. 4 (pp. 8, 14, 20 fn. 24); Tr. 46, 158–159; see
also Jt. Exh. 6 (pp. 55, 67, 139)5 (explaining that StarTran is a nonprofit corporation established
by Capital Metro).)25
Starting in about 1991, the Union served as the exclusive collective-bargaining
representative for StarTran employees in the following appropriate bargaining unit:
All transportation and maintenance employees employed by [StarTran], excluding any 30
office clerical employees, guards, supervisors, and confidential and managerial
employees as defined in the Act.

p. 308, l. 8: “medication” should be “mediation”; p. 312, ll. 19, 21: Attorney Martin was the speaker; p.
426, l. 22: “raided” should be “raised”; p. 316, l. 6: “Return” should be “retirement”; p. 316, l. 16: “MV’s
price,” should be “MV has priced”; p. 316, l. 17: “107” should be “187”; p. 427, l. 15: “Hernandez”
should be “Fernandez”; and p. 437, l. 4: Attorney Martin was the speaker. To the extent that the Union
proposed transcript corrections that are not reflected here, I hereby deny the Union’s requests for those
corrections because they are not supported by the evidentiary record.
3 Although I have included several citations in this decision to highlight particular testimony or
exhibits in the evidentiary record, I emphasize that my findings and conclusions are not based solely on
those specific citations, but rather are based on my review and consideration of the entire record for this
case.
4 Fixed route bus services involve large buses that run back and forth on a predetermined route.
Paratransit service buses operate from door to door, and transport individuals with disabilities. (Tr. 167.)
5 The joint exhibits in the record have consecutive page numbers. For ease of reference, when I refer
to a specific page number of a joint exhibit in the record, I use the consecutive page number stamped in
the bottom right corner of the document.
JD–01–19
4
(GC Exh 1(g), (r) (par. 7).) StarTran recognized the Union during that time period, and executed
successive collective-bargaining agreements with the Union, including an agreement that was
effective from July 1, 2007, to June 30, 2011, and was extended through August 18, 2012. (Id.;
see also Jt. Exhs. 2, 5, 7, 8 (p. 159), 9; Tr. 45, 163, 296.)5
2. Retirement plan for the bargaining unit under StarTran
In the late 1990s, StarTran offered both a defined benefit (pension) plan and a 401(k)
plan to employees in the bargaining unit. For the pension plan, employees with one or more 10
years of service were required to contribute a percentage of their weekly wages to the pension
fund. StarTran also contributed to the pension fund each year by paying an amount that equaled
the total of employees’ contributions. By contrast, the 401(k) plan that StarTran offered was
voluntary (i.e., employees were not required to participate), and was funded only by employee
contributions. (Jt. Exh. 2 (p. 12); Tr. 88–92, 208–210; see also Jt. Exh. 5 (p. 53–54) (collective-15
bargaining agreement effective from July 1, 2000 to June 30, 2005, indicating that employees’
weekly contributions to the pension plan would be 4.3 percent of the top operator’s hourly wage
multiplied by forty hours); Jt. Exh. 6 (p. 97) (same).)
By 2002, the StarTran pension plan was severely underfunded. To address that problem, 20
the Union, StarTran and Capital Metro agreed that, effective January 1, 2002, Capital Metro
would assume sponsorship of the pension plan and convert it to a government pension plan that
would be exempt from the funding requirements established by federal law (such as the
Employee Retirement Income Security Act of 1974 (ERISA) and the Internal Revenue Code).
As part of that new arrangement, Capital Metro took on the obligation of making the employer 25
contributions to the pension plan that StarTran provided, and agreed to guarantee the benefits
accrued under the plan. (Jt. Exh. 6 (pp. 55–57, 67); R. Exh. 4 (pp. 20–21); Tr. 114–115, 226–
227, 236.) The Union and StarTran incorporated this revised pension plan arrangement (as well
as the voluntary 401(k) plan) into their collective-bargaining agreements effective July 2000 to
June 2005, July 2005 to June 2007, and July 2007 to August 18, 2012. (Jt. Exhs. 6 (p. 56); 7 (pp. 30
146–147), 8 (pp. 192–194), 9; Tr. 111–112, 228–231.)
B. 2011 – Capital Metro Plans to Select a Private Contractor to Provide Paratransit
Services
35
In 2011, prompted by an audit of Capital Metro’s finances, the Texas legislature passed a
law that required Capital Metro to outsource all transportation services that were not being
performed by a Capital Metro employee. As a result, Capital Metro had two options concerning
StarTran – either make StarTran employees public employees of Capital Metro, or select a
private contractor to replace StarTran in providing paratransit services. Bargaining unit 40
members, however, voted against becoming employees of Capital Metro. Accordingly, on
September 15, 2011, Capital Metro issued a request for proposals (RFP) from qualified
independent contractors to provide paratransit services in the greater Austin area. (Jt. Exh. 14 (p.
317); R. Exh. 4 (p. 8); Tr. 296–298; see also Tr. 385–386 (general description of the RFP
process).)45
JD–01–19
5
Later in the fall of 2011, Capital Metro provided written answers to various questions that
it received from contractors who were contemplating submitting a proposal in response to the
RFP. In those answers, Capital Metro explained that StarTran drivers are represented by the
Union, and that drivers’ wages and benefits are determined in negotiations with the Union.
Regarding pension and retirement benefits, Capital Metro stated that it did not expect the 5
contractor to fund any existing liability for the pension plan, but noted that contractors would
need to explain how they proposed to provide retirement plans for bargaining and non-
bargaining employees. (Jt. Exh. 10 (pp. 289–290).)
In the same timeframe, the Union contacted Respondent and asserted that if Respondent 10
won the contract, Respondent would be obligated as a successor employer to continue providing
retirement benefits to bargaining unit members. Specifically, the Union stated as follows:
Currently, the StarTran bargaining unit workers who are represented by [the Union] have
two types of retirement benefits: a defined benefit plan and a defined contribution plan. 15
The defined benefit plan must continue to be maintained by Capital Metro as a
government plan, based on agreements Capital Metro and StarTran have made with [the
Union]. In addition, StarTran bargaining unit employees have a defined contribution
plan, in the form of a 401(k) plan. Every aspect of each of these retirement plans must
remain in effect upon transition from one contractor to the next, unless and until Capital 20
Metro and StarTran, or its successor, bargain with [the Union] to make any changes.
. . .
As we have consistently stated in past letters, we are committed to dealing with you in a 25
good faith collective-bargaining relationship should you be awarded a contract by Capital
Metro. As you prepare your final proposals, you may have additional questions
regarding the terms that you will be assuming, and their potential costs. Thus, we again
extend an invitation to you to continue discussion with us, or to meet with our lawyers to
discuss any issue in this regard.30
(R. Exh. 1; see also Tr. 141–143.)
C. January 2012 – Partial Settlement between Capital Metro and the Union Regarding the
Obligations of the New Paratransit Services Contractor35
On January 19, 2012, the Union and Capital Metro reached a partial settlement on what
terms and conditions of employment would apply once the new contractor replaced StarTran in
providing paratransit services. For most terms and conditions of employment, the Union and
Capital Metro agreed that the new contractor would be free to negotiate, using “the core terms 40
[specified in the RFP] as the minimum.” During those negotiations, however, the contractor
would apply the terms and conditions of employment of the current collective-bargaining
agreement between StarTran and the Union until either August 19, 2013, or the parties reached
an agreement or impasse (if that occurred before August 19, 2013). (GC Exh. 9 (last page); see
also Tr. 100, 145, 151, 256–258.)45
JD–01–19
6
By contrast, the partial settlement outlined the following agreement between the Union
and Capital Metro concerning the health and welfare and retirement benefits that the new
contractor would provide:
[Health and welfare benefits]5
During the above-defined negotiation period, health and welfare benefits will be
comparable for all existing employees. Comparable is defined as:
The current co-pays, deductible, co-insurance, out of pocket max, and coverage; 10
and
The employee contribution percentage will be no greater than it is in the current
CBA and the dollar amount of an employee’s contribution will not be greater than
10% higher than the current contribution.15
Retirement plan
[Capital Metro and the Union] will negotiate regarding the new contractor’s obligations
to provide retirement benefits during the negotiation period which will begin no later than 20
2/1/12.
This [pending] arbitration is continued until March 1 and 2. Arbitration will occur on
that date if negotiations are not successful. An arbitration award will be issued no later
than April 6, 2012.25
The subject of the arbitration shall be: what retirement benefits will Capital Metro require
the contractor to provide until a new CBA is reached or the earlier of the date certain of
8/19/13 or impasse?
30
(GC Exh. 9 (last page); see also Tr. 100–101, 151.)
D. February/March 2012 – Communications between Capital Metro and Respondent about
Respondent’s Proposal to Provide Paratransit Services
35
On February 7, 2012, Capital Metro issued its request for final proposal revisions for the
RFP concerning paratransit services. (Jt. Exh. 14 (p. 317).) In connection with that request,
Capital Metro issued a revised set of “Labor and Employment Provisions (Core Terms)” for the
contract, which states as follows concerning bargaining unit members:
40
Employment and Labor Requirements for Employees Represented by [the Union]
(a) Hiring Rights
(1) Employment of Existing Workforce – The Contractor shall offer employment 45
to all bargaining unit employees who are represented by [the Union] and
employed by StarTran, Inc. . . . on August 18, 2012. Such employees shall be
JD–01–19
7
employed in positions with the Contractor that are comparable to those which
they held as StarTran employees.
(2) Conditions on Hiring – Notwithstanding paragraph (1), the Contractor shall
not be required to offer employment to any person otherwise eligible under 5
that paragraph who [fails to successfully complete required drug and alcohol
testing or a physical examination required under the CBA with StarTran, or
fails to meet the criminal background check standards of Capital Metro].
(b) Union Representation – The Contractor shall recognize [the Union] as the authorized 10
representative, for purposes of collective bargaining, of its employees who perform
work of the type performed by the StarTran bargaining unit represented by [the
Union]. The Contractor shall bargain collectively with [the Union], in accordance
with this Section concerning the terms and conditions of employment of such
employees.15
(c) Establishment of Initial Terms and Conditions of Employment – The Contractor shall
establish its initial terms and conditions of employment in accordance with the
mandatory labor terms and conditions set forth in subsection (e) below. The
mandatory terms and conditions in subsection (e) below must be established at the 20
outset of employment and will apply until a collective bargaining agreement is
developed with the union or until the earlier of impasse or the date certain of
8/19/2013.
(d) Negotiation of CBA – The contractor shall negotiate a collective bargaining 25
agreement with [the Union] that includes, without limitation, the terms and conditions
in subsection (e) below, unless the Contractor and the Union expressly agree to
alternative terms. . . .
(e) Mandatory terms and conditions – The collective bargaining agreement between the 30
Contractor and [the Union] must contain (at a minimum) all of the terms, conditions,
and subjects specified in this subsection, unless the Contractor and the Union
expressly agree in writing to alternative terms.
(1) Seniority Rights – The Contractor shall recognize the seniority rights of 35
represented employees in accordance with the existing seniority roster at the
prior employer. . . .
(2) Health and Welfare – The Contractor shall offer health, disability, dental, life,
and accidental death insurance for its employees that is substantially 40
equivalent, in terms of type and scope of coverage, to the insurance coverage
offered by the prior employer. The Contractor shall bargain collectively with
[the Union] regarding employee contributions to premiums, co-payments,
deductibles, and other economic matters relating to such insurance.
45
(3) Retirement – The Contractor shall provide a retirement plan for its employees.
The Contractor shall bargain collectively with [the Union] over the terms and
JD–01–19
8
conditions of such retirement plan, including the levels or amounts of
employee and employer contributions to the plan.
(4) Wages – The contractor shall pay each employee of the prior employer who is
hired under subsection (a) hereof an hourly wage, at the outset of his or her 5
employment with the Contractor, that is not less than the hourly wage in effect
for such employee on the date of his or her separation from employment with
the prior employer.
(5) Grievances – The Contractor shall establish a procedure for the consideration, 10
appeal, and resolution of grievances.
(6) Discipline – The Contractor shall establish a procedure for handling employee
discharge and other discipline that allows for discharge or discipline if work is
not satisfactory or for other just cause and that provides advance written 15
notice to the employee, an opportunity for response before a proposed
disciplinary action becomes final, and a process for appeal to a neutral party.
(7) Accrued leave – The Contractor shall assume all accrued sick and vacation
leave of employees hired under subsection (a) above, as such leave is in 20
existence on the date of the employee’s termination of employment with the
prior employer. . . .
(Jt. Exh. 14 (pp. 329–330).) Respondent acknowledged these revised labor terms on March 1,
2012. (GC Exh. 2 (Amendment 6).)25
In March 2012, Respondent communicated with Capital Metro about the terms of
Respondent’s proposal. Among other details, Respondent advised Capital Metro that its
proposal “factors for a 100 percent retention of the existing bargained employees, at the seniority
level and wage rates provided in the RFP.” (GC Exh. 7 (p. 2).) As for retirement benefits, 30
Respondent explained that it proposed offering all employees a defined contribution (401(k))
plan, and proposed offering existing employees: a deferred life annuity that would mirror the
incremental pension benefit that they would have received had they worked one more year with
StarTran;6 and a pension buy down after one year. (Id. (pp. 4–5); GC Exh. 4 (p. 4) (explaining
that Respondent concluded that “any proposed pension plan will have to be substantially35
equivalent to the current pension plan for all of the bargained employees”); Tr. 313–318; see also
GC Exhs. 2 (p. 2), 4 (p. 4).)
E. April 6, 2012 – Arbitrator Decision Concerning Whether Capital Metro Should Specify
the Retirement Benefits that the Paratransit Services Contractor Must Provide40
On April 6, 2012, a neutral arbitrator issued a decision on the following question
presented by Capital Metro and the Union: whether Capital Metro is required to insist that any

6 The exact proposal language for the annuity describes the benefit as a “[o]ne year benefit for a fixed
group as a single payment group annuity - $60/month deferred life annuity ten years guaranteed.” (GC
Exh. 7 (last page).)
JD–01–19
9
new contractor selected during its current procurement process be bound by the Capital Metro
retirement plan for bargaining unit employees of StarTran. (R. Exh. 4 (pp. 3, 6–7).) After
reviewing a range of arguments, the arbitrator concluded that Capital Metro was not required to
impose such a restriction on the new contractor. (Id. (p. 25); see also Tr. 253).
5
F. April 23, 2012 – Capital Metro Awards Paratransit Services Contract to Respondent
On April 20, 2012, Capital Metro notified employees that its staff had recommended to
the Capital Metro board of directors that Respondent be selected to provide paratransit services
beginning on August 19, 2012. Capital Metro stated as follows regarding the effect that the 10
decision would have on employees:
In our commitment to protect employees, Capital Metro is requiring [Respondent] to
provide core employment terms for jobs, wages and benefits while negotiating a new
collective bargaining agreement with [the Union]. Bargaining employees are guaranteed 15
a job offer, current wages, sick and vacation time, health benefits and a retirement plan. .
. .
Regarding the pension for bargaining employees, earlier this week Capital Metro filed a
motion in federal court to confirm the independent arbitration ruling received earlier this 20
month. The arbitration ruling stated that Capital Metro is not obligated to require a new
contractor to be bound by any terms of the Capital Metro Retirement Plan for Bargaining
Unit Employees of StarTran, Inc. [Capital Metro] believes this is the best way to move
forward to continue the labor structure transition.
25
(Jt. Exh. 12; see also Tr. 127–128, 165–170, 260–263, 271–272.)
As the Union explained during trial, Respondent could not pay into the Capital
Metro/StarTran pension plan because that plan was a government plan, and Respondent is a
private employer. The Union’s position was that Respondent should address that issue by 30
making pension contributions into an interest-bearing account while the parties negotiated the
terms of a new collective-bargaining agreement (and the terms of a new retirement plan). (Tr.
91–92, 95–96, 119–121.)
The board of directors for Capital Metro formally awarded the paratransit services 35
contract to Respondent on April 23, 2012. In a letter sent to employees that same day, Capital
Metro reiterated that Respondent was required to provide the employment terms and benefits
described in Capital Metro’s April 20 letter. (Jt. Exhs. 13, 14 (p. 313); see also Tr. 27, 170–173,
272–273.)
40
G. April 24–25, 2012 – Respondent Communicates with Employees about Benefits
On April 24, 2012, Respondent provided bargaining unit employees with a flyer that
provided an overview of hiring, pay and benefits that Respondent would provide after taking
over for StarTran. Respondent promised the following:45
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10
Job Offers – Bargaining employees with StarTran, Inc. as of August 18, 2012 will be
given a job offer by [Respondent] comparable to their job held as a StarTran, Inc.
employee. Employees must successfully complete [Respondent’s] physical and drug
screening requirements. [Respondent] will not offer a position to anyone who fails to
successfully complete the drug screening or physical exam required under provisions of 5
the collective bargaining agreement with StarTran, Inc., or who fails to meet criminal
background checks as required by Capital Metro.
Pay – [Respondent] will pay each former employee of StarTran who were employed as of
August 18, an hourly wage at the outset of his or her employment with [Respondent] that 10
is not less than the hourly wage in effect for such employee at the date or his or her
separation from StarTran, Inc.
[Health and Welfare Benefits] – [Respondent] will offer health, disability, dental, life,
and accidental death insurance for it employees [that is] substantially equivalent, in terms 15
of type and scope of coverage, to the insurance offered by the prior employer.
[Respondent] will bargain collectively with [the Union] regarding employee
contributions to premiums, copayments, deductibles, and other economic matters relating
to such insurance. . . . [Respondent] will assume all accrued sick and vacation leave of
the employees hired (who were StarTran employees as of August 18, 2012), as such leave 20
is in existence on the date of the employee’s termination of employment with the prior
employer. [Respondent] will also honor the vacation mark ups that StarTran, Inc. will
conduct that covers the period of time from the employee’s hire date with [Respondent]
through December 2012.
25
Retirement – [Respondent] will provide a retirement plan for its employees. [Respondent]
will bargain collectively with [the Union] over the terms and conditions of such
retirement plan, including the levels or amounts of employee and employer contributions
to the plan.
30
. . .
Seniority – [Respondent] shall recognize the seniority rights of represented employees in
accordance with the existing seniority roster [of] StarTran, Inc. Seniority shall apply to
layoffs, re-hiring/return from furlough, bidding on routes, and selection of vacation.35
(R. Exh. 12 (pp. 1, 3–4); see also Tr. 428–430.) Similarly, in an April 25, 2012 meeting with
Union representatives, Respondent indicated that it would: bargain with the Union; continue to
collect union dues on a biweekly basis; and hire all existing employees. (Tr. 174–177.)
40
H. April 30, 2012 – Capital Metro and Respondent Execute the Paratransit Services
Contract
On April 30, 2012, Capital Metro and Respondent executed the paratransit services
contract. The contract incorporated the Labor and Employment Provisions (Core Terms) that 45
Capital Metro set forth on February 7, which set guidelines for: establishing initial terms and
conditions of employment; negotiating a collective-bargaining agreement; and mandatory terms
JD–01–19
11
and conditions of employment. (Jt. Exh. 14 (pp. 324, 329–332); see also Findings of Fact (FOF),
Section II(D), supra (setting forth the text of the Labor and Employment Provisions); GC Exh. 8
(copy of contract with attachments); Tr. 27, 31–33, 46–47, 149–151, 411.)
I. June 6, 2012 – Capital Metro’s Letter to Employees about Retirement Benefits5
On June 6, 2012, Capital Metro sent a letter to employees to explain how retirement
benefits would be affected by the transition from StarTran to private contractors (including,
Respondent, for paratransit services). Capital Metro stated as follows in the letter:
10
[A]n agreement was signed on January 19, 2012, by the [Union] and Capital Metro
agreeing that most of the terms and conditions of the current collective bargaining
agreement will remain in place for up to a year while the [Union] and the contractors
are negotiating new agreements. The terms and conditions related to the retirement
plans were not included in that agreement.15
Capital Metro believes that the Defined Benefit Pension Plan does not carry over to the
new contractors. This was confirmed by an arbitration ruling on April 6, 2012, saying
that Capital Metro does not have to require any new contractor to be bound by any terms
of the Capital Metro Transportation Authority Retirement Plan for Bargaining Unit 20
Employees of StarTran, Inc. Further, the Labor Agreement that requires the Pension Plan
expires on August 18, 2012. Since the Labor Agreement does not carry over to the new
contractors, there will be no requirement for employees to continue to earn a pension
benefit or for employer contributions to continue. . . .
25
(R. Exh. 7 (emphasis in original); see also Tr. 345–346.)
J. Summer 2012 – Respondent and the Union Begin Bargaining
On May 10, 2012, the Union wrote to Respondent to request bargaining “over the terms 30
and conditions of our current collective bargaining agreement relating to wages, all benefits
including both retirement plans and working conditions,” and “over all previously negotiated
policies, procedures and rules and regulations.” (Jt. Exh. 15; see also Tr. 47–48 (noting that the
Union’s letter was correctly addressed to Respondent’s chief negotiator, but included a
typographical error in the first sentence, insofar as the sentence referred to McDonald Transit 35
instead of Respondent).)
A few weeks after the Union’s bargaining request, on June 8, 2012, representatives of
Respondent and the Union met to discuss various issued related to the transition from StarTran to
Respondent as the provider of paratransit services. Initially, the parties worked out an agreement 40
about the application process for StarTran bargaining unit members who wished to seek
employment with Respondent.7 Respondent reiterated that it intended to hire existing StarTran

7 In May and early June 2012, a dispute arose between Respondent and the Union about the
application process for StarTran bargaining unit members who wished to seek employment with
Respondent. Part of the dispute centered around whether bargaining unit members should be required to
answer all of the questions on Respondent’s application form. (See Jt. Exhs. 16–18.) The Union and
JD–01–19
12
employees who met the basic requirements (i.e., passing a physical exam, drug screening, and
criminal background check). Respondent added that if individual applicants did have issues in
their background that might disqualify them from employment, Respondent would consider their
circumstances on a case-by-case basis. (Jt. Exh. 20; GC Exh. 11 (pp. 1, 3, 5–6); Tr. 46–47, 50–
51, 55–57; see also Jt. Exhs. 16 (May 15, 2012 letter from Respondent, stating Respondent’s 5
“strong desire to hire 100% of the current workforce, subject to review of individual
qualifications”) (emphasis in original), 17 (May 2012 memorandum from Respondent to
StarTran operators/drivers, stating that all StarTran operators/drivers that meet Respondent’s
hiring criteria and are in good standing will be guaranteed employment); Tr. 48–50, 185–189.)
10
In the latter part of the June 8 meeting, the Union presented its initial contract proposal,
and asked if Respondent would maintain the status quo under the StarTran collective-bargaining
agreement during negotiations. Respondent indicated that it could not extend the entire StarTran
agreement, but as an alternative would prepare a transition agreement that all parties could agree
to. (GC Exh. 11 (p. 2–3, 6); Tr. 50, 55; see also Jt. Exh. 19 (Union’s initial contract proposal).)15
The Union and Respondent met again for bargaining on July 16 and 17, 2012. In those
sessions, Respondent again proposed that the parties sign a transition agreement that would set
initial terms and conditions of employment. The Union opposed that idea, as it preferred to keep
the current (StarTran) agreement in place. Respondent, however, indicated that it did not like 20
certain aspects of the StarTran agreement because certain terms were too complicated and/or
could be deleted. (GC Exh. 12 (pp. 1–2, 6), 13; Jt. Exh. 21; Tr. 57–60.)
In the July 17 session, the Union and Respondent briefly touched on the issue of
retirement benefits. The Union stated that it wanted Respondent to provide a pension plan8 and a 25
401(k) plan. Citing the April 6, 2012 arbitration decision, Respondent indicated that it was not
obligated to provide a pension plan to employees, and added that it would be an uphill battle to
get Respondent’s administration to agree to such a plan. Respondent also stated that it would not
be able to administer a 401(k) plan. The Union asserted that Respondent’s position on those
retirement issues did not supersede the requirements established by Section 13(c) of the Federal 30
Transit Act. In addition, the Union requested that Respondent deposit the amount of its pension
contributions in an interest-bearing bank account until the parties determined how retirement
benefits would be administered (hereafter, I refer to these requested payments as “retirement
contributions”).9 Respondent did not say one way or the other whether it would make retirement

Respondent used the June 8, 2012 meeting to resolve their differences on this issue. (See Jt. Exh. 20.)
Thereafter, StarTran employees wishing to work for Respondent could submit their job applications
online. (Tr. 187–188, 299; see also Jt. Exh. 17 (describing the online application process).)
8 The bargaining notes in the record often refer to the pension plan as a “DB” (defined benefit) plan.
Occasionally, note takers also used the abbreviation “DP” to refer to the pension plan. I find that all of
those terms are synonymous. (See, e.g., GC Exh. 14 (pp. 1–3); Tr. 89, 91–92.)
9 Respondent correctly points out that the bargaining notes taken by the Union’s representatives do
not mention the Union’s request that pension payments be deposited into an interest-bearing account.
(See GC Exh. 14.) Nevertheless, I have credited the Union’s testimony that it made the request. Two
Union witnesses (Yvette Trujillo and Lawrence Prosser) corroborated each other on that point, and
Respondent did not call any of its four representatives from the July 17 session to say otherwise. In
addition, when the Union asked, at a July 23, 2013 bargaining session, whether Respondent was making
retirement contributions, Respondent’s representative stated that she believed Respondent was making the
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13
contributions into an account as the Union requested, and there is no written agreement that
addresses the issue.10 (GC Exh. 14 (pp. 1–3); Tr. 61–62, 92–97, 106–110, 122, 126, 128–129,
134–135, 138, 214, 263–264; see also Tr. 63–64.)
Respondent and the Union did not revisit (until July 2013) the topic of whether 5
Respondent should make pension contributions while the parties negotiated the terms of an
initial collective-bargaining agreement. (Tr. 122, 124, 215–216, 266–267, 269.) However, in
negotiations in late July 2012, the Union and Respondent did work out the following transition
agreement:
10
The parties agree that all tentative agreements reached between the parties with respect to
seniority, initial health and welfare – including rates, retirement, initial wages,
grievances, discipline, accrued leave, General Provisions and other agreed-to areas
will be adhered to during the negotiation period and ultimately incorporated into a
final agreement once reached, unless the parties agree to alternative terms. Such terms 15
shall remain in effect until Impasse, a new comprehensive CBA is reached or August
19, 2013.
(Jt. Exh. 24 (emphasis and strikethrough text in original); see also Jt. Exhs. 22–23 (earlier
transition agreement proposals).) The Union’s understanding of the transition agreement was 20
that Respondent would need to maintain the status quo for any topics, including retirement, not
covered by the transition agreement. (Tr. 64.)
K. August 2012 – Respondent Begins Providing Paratransit Services
25
In early August, the CEO of Capital Metro met with groups of bargaining unit employees
to discuss the transition from StarTran to Respondent as the provider of paratransit services. At
those meetings, Capital Metro confirmed (as stated in previous communications) that employees’
jobs, wages, hours and benefits with Respondent would be comparable to what the employees
had with StarTran. (Tr. 197–199.) 30
On August 14, 2012, Respondent delivered a memorandum to StarTran drivers’
workplace mailboxes. Although Respondent had not previously notified the drivers of any
formal hiring decisions, Respondent stated as follows in the memorandum:
35
On Sunday, August 19, 2012, [Respondent] will officially begin [paratransit services].
All of you will be employees of [Respondent] and there will be some changes to your
regular operating procedures that you will need to be aware of. . . . Below is a list of
changes from the previous management and operating procedures. If you have any

contributions. (See GC Exh. 21 (p. 7); Tr. 95–96, 131–134; see also Findings of Fact (FOF), Section
II(L), infra (noting that starting in September 2012, Respondent began recording accrued retirement
contributions on its general ledger).) Respondent’s comments on July 23, 2013, further corroborate the
witness testimony that, on July 17, 2012, the Union asked Respondent to make retirement contributions
into an interest-bearing bank account.
10 The Union believed that, irrespective of whether there was a written agreement, the NLRA
required Respondent to continue making retirement contributions. (Tr. 129, 131, 138.) That issue is now
presented in this case for me to decide.
JD–01–19
14
questions please do not hesitate to ask any manager for assistance and direction. Thank
you in advance for your cooperation and understanding during this time. Our goal is to
complete a seamless transition and all of you are an integral part to our success.
WELCOME ABOARD!
5
(Jt. Exh. 28 (p. 2, emphasis in original); see also Tr. 191–193, 269–270.) As indicated in the
memorandum, one of Respondent’s nine managers and two of Respondent’s four road
supervisors worked for StarTran in a similar capacity (five other StarTran employees were
promoted to manager or supervisor positions with Respondent). Although Respondent indicated
that employees were expected to enroll in “benefits” by August 14, 2012, Respondent did not 10
specifically address retirement benefits or contributions in the memorandum. (Jt. Exh. 28 (pp. 2–
3); Tr. 193–197, 269–270.) Respondent did not announce any major changes in the memo,
though it did: explain that some employees/departments would be located in different offices;
and describe new procedures for drivers to receive their manifests and vehicle assignments each
day. Respondent also instructed employees to bring in their uniforms to swap out the StarTran 15
patches for Respondent’s patches, and advised that the routes and schedules that drivers
previously selected would take effect on August 19, 2012. (Jt. Exh. 28.)
On August 19, 2012, Respondent formally began providing paratransit services under its
contract with Capital Metro.11 Respondent hired all but one of the approximately 150–175 20
employees who had been working for StarTran and were members of the bargaining unit.
Bargaining unit members continued with their general duties of picking up and dropping off
paratransit bus passengers, albeit with minor changes such as: signing in and out (instead of
swiping a card) for timekeeping purposes; replacing the StarTran patch on their uniforms with
one of Respondent’s patches; using a different type of mobile data terminal that Respondent 25
provided; attending two days of training; and getting familiar with changes in office/room
assignments at the main office. Among other things that remained constant notwithstanding the
transition, bargaining unit members kept their same wages, route assignments, work schedules,
and paratransit vehicles. (Tr. 46, 66–67, 158, 167–168, 189–190, 199–208, 274; see also Tr.
300–301 (describing a similar transition for non-bargaining unit employees).)30
In late August, Capital Metro contacted Respondent to verify that Respondent understood
and accepted its responsibilities under the contract to, among other things, comply with: the labor
and employment provisions outlined in the contract; and the January 19, 2012 partial settlement
agreement between Capital Metro and the Union. (GC Exh. 9 (p. 1); see also GC Exh. 15 35
(indicating that Capital Metro notified the Union about its inquiry to Respondent, and noting that
the Union previously asked Capital Metro to reconfirm these issues); Jt. Exh. 14 (pp. 329–332)
(labor and employment provisions in the contract); GC Exh. 9 (last page, stating the terms of the
partial settlement agreement); Tr. 33–34, 68.) In a letter dated August 22, 2012, Respondent
stated that it understood and accepted its obligations to comply with the labor and employment 40
terms of the contract and the partial settlement agreement. (GC Exh. 10; see also Tr. 35–36, 99.)

11 In connection with this transition, on August 18, 2012, Capital Metro (with the Union’s consent)
froze its defined pension benefit plan and established guidelines for when and how bargaining unit
members could access benefits that they had accrued under that plan. (R. Exh. 11.)
JD–01–19
15
L. August 2012 to July 2013 – Respondent and the Union Continue Negotiating for a New
Collective-Bargaining Agreement
On August 21, 2012, Respondent and the Union reached a tentative agreement
concerning payday, check-off and payroll deductions. Under the tentative agreement, 5
Respondent agreed to deduct union initiation fees, dues and assessments from employee
paychecks, and remit those funds to the Union each pay period. Respondent also agreed to make
other deductions that employees might authorize in writing, such as deductions for uniforms,
group insurance and pension contributions. (Jt. Exh. 29; see also Tr. 67.)
10
Starting in September 2012, and continuing to at least April 2014, Respondent began
accruing, on its general ledger, retirement contributions for its administrative employees, drivers
and maintenance employees. (R. Exhs. 8–10; Tr. 357–366, 370–377, 382–384.) There is no
evidence that Respondent paid or assigned these “paper” contributions to specific bargaining unit
members or to a retirement fund or account, or that Respondent notified the Union of the 15
accruals. Further, the evidentiary record does not establish whether the retirement contribution
amounts indicated on Respondent’s general ledger are comparable to the amounts that StarTran
paid in periodic retirement contributions before Respondent began providing paratransit services.
(See, e.g., Tr. 380–381, 393–394, 396–398, 408–409, 414–415.)
20
Between August 2012, and early July 2013, Respondent and the Union continued
bargaining for a collective-bargaining agreement. The terms of a new retirement plan persisted
as one of the unresolved issues, with the parties generally negotiating about the amount that
Respondent might contribute (based on a percentage of the employee’s wages) to a 401(k) plan,
and when employees would become eligible for those contributions. In this timeframe, the 25
parties did not discuss whether Respondent was making retirement contributions into an interest-
bearing account while the parties negotiated. (Jt. Exhs. 30–40; GC Exhs. 16–19; Tr. 69–76,
301–303, 322–324.)
M. July 23, 2013 – the Union asks if Respondent is Making Retirement Contributions30
In mid-July 2013, the Union received what it characterized as a “favorable” opinion from
the NLRB concerning an unfair labor practice charge against Travis Transit (a.k.a. McDonald
Transit), the contractor that Capital Metro selected to provide fixed route bus transportation
services.12 Since one of the issues concerning Travis Transit was that it allegedly was failing to 35

12 During trial, Respondent sought to offer the following documents concerning Travis Transit into
evidence: (a) an October 9, 2012 unfair labor practice charge (Case 06–CA–087951) (R. Exh. 2 –
rejected); and (b) an NLRB complaint, issued on March 31, 2014, against Travis Transit (Cases 06–CA–
087951 and 16–CA–091323) (R. Exh. 3 – rejected). I gave Respondent the opportunity to demonstrate
the relevance of those documents through testimony, but ultimately found that Respondent failed to
establish that the Travis Transit unfair labor practice charge or complaint were relevant. Specifically, I
found that the documents concerning Travis Transit were too remote to support a theory that, based on
what was happening with Travis Transit, the Union should have known that Respondent was not making
retirement contributions. (Tr. 288–291; see also Tr. 241–252 (testimony and argument that I allowed
Respondent to present on this issue)). I stand by that ruling, which is supported by the following
observations: (a) the Travis Transit unfair labor practices charge does not mention any alleged failure to
make retirement contributions (though the charge does make a general allegation of unlawful unilateral
JD–01–19
16
make pension contributions, the Union wondered if Respondent also was failing to make
retirement contributions. (Tr. 214–215, 239–241; see also Tr. 238 (noting that after this
development, in July 2013, Union financial secretary Lawrence Prosser inspected his paycheck
and noted that Respondent was not deducting any money for retirement).)13
5
On July 23, 2013, the Union and Respondent met for another bargaining session. On the
issue of retirement, the Union asked Respondent if it made an (unlawful) unilateral change by
not making retirement contributions (and by not deducting retirement funds from employee
paychecks).14 When Respondent, through general manager Brenda Fernandez, stated that
Respondent was making the contributions and deductions (to her knowledge), the Union 10
disputed the accuracy of that assertion and asked for supporting documentation. (GC Exh. 21 (p.
7); see also Tr. 76–79, 95–96, 132, 134, 216, 218.)
In an email dated August 6, 2013, Fernandez responded to various questions that the
Union posed in the July 23 bargaining session about the status of contract negotiations. 15
Regarding the question of whether Respondent was making retirement contributions, Fernandez
asserted: “[w]e have no obligation for the StarTran Pension Plan or any contribution. Article 21
is our proposal regarding retirement.” (Jt. Exh. 43 (p. 2); Tr. 82–83.)
N. August 2013 to February 2014 – the Union and Respondent Complete Negotiations for a 20
Collective-Bargaining Agreement
In fall 2013, the Union and Respondent agreed that, irrespective of language in the
paratransit services contract that indicated that collective-bargaining would conclude by August
19, 2013, they would continue contract negotiations. (Jt. Exhs. 44, 51; GC Exh. 22; Tr. 83–84.)25
On September 26, 2013, Respondent and the Union signed a tentative agreement
concerning the retirement plan that would be available to bargaining unit members under the new
collective-bargaining agreement. The tentative agreement stated as follows:
30
Article 21 – Retirement Plan
Regular, full-time employees within the bargaining unit shall be eligible for participation
in [the Union’s] 401(k) plan, subject to the plan’s rules, regulation and eligibility
requirements. All regular full-time employees are eligible to participate upon reaching 35
ninety (90) days of service, Employer contributions shall begin the first pay period

changes to terms and conditions of employment); (b) none of the parties established that the unfair labor
practices charge against Travis Transit was the “favorable” decision that prompted the Union, in July
2013, to wonder if Respondent was making retirement contributions (see Tr. 240, 247); and (c) the Travis
Transit complaint was issued in March 2014, well after the Union asked (in July 2013) whether
Respondent had been making retirement contributions.
13 For StarTran’s pension plan, both the employer and the employee made pension contributions.
(See, e.g., Jt. Exh. 8 (pp. 193–194); Tr. 109–110.) Respondent did not deduct any retirement funds from
employee paychecks during negotiations for a new collective-bargaining agreement. (Tr. 138–140.)
14 The Union conceded that, between the July 17, 2012, and July 23, 2013 bargaining sessions, it did
not take any action to verify that Respondent was making retirement contributions. (Tr. 123–125, 129–
130, 132, 136–138, 265–269.)
JD–01–19
17
following ninety (90) days of service. The Employer will not contribute to any other
retirement plan or arrangement for the benefit of employees within the bargaining unit
other than the 401(k) plan. Upon ratification of this Agreement, the Employer will
contribute (3.75%) of the full time employee’s regular straight time wages each pay
period to the plan for all operations and maintenance employees. The Company 5
contribution shall increase to (4.1%) effective the first pay period after 8/1/14. The
Employer agrees to deduct each pay period, by payroll deduction, any additional
voluntary contributions allowed by the plan.
(Jt. Exh. 50; see also Tr. 85, 99, 306, 324–325.) The parties did not work out an agreement 10
concerning whether Respondent should have been making retirement contributions starting on
August 19, 2012, the date that Respondent began providing paratransit services under its contract
with Capital Metro. (Tr. 85–86, 306–307.)
On April 28, 2014, the Union and Respondent executed a new collective-bargaining 15
agreement that was effective retroactively to February 20, 2014. The new collective-bargaining
agreement included, as Article 19, a 401(k) retirement plan with the same terms stated in the
September 26, 2013 tentative agreement. Respondent did not make any retirement contributions
between August 19, 2012, and April 28, 2014 (i.e., between the day that Respondent began
providing paratransit services under its contract with Capital Metro and the day that the parties 20
executed the new collective-bargaining agreement). (Jt. Exhs. 52 (p. 514), 53; Tr. 154, 219–
221.)
APPLICABLE LEGAL STANDARDS
25
A. WITNESS CREDIBILITY
A credibility determination may rely on a variety of factors, including the context of the
witness’ testimony, the witness’ demeanor, the weight of the respective evidence, established or
admitted facts, inherent probabilities and reasonable inferences that may be drawn from the 30
record as a whole. Credibility findings need not be all-or-nothing propositions — indeed,
nothing is more common in all kinds of judicial decisions than to believe some, but not all, of a
witness’ testimony. Farm Fresh Co., Target One, LLC, 361 NLRB 848, 860 (2014) (noting that
an administrative law judge may draw an adverse inference from a party’s failure to call a
witness who may reasonably be assumed to be favorably disposed to a party, and who could 35
reasonably be expected to corroborate its version of events, particularly when the witness is the
party’s agent). My credibility findings are set forth above in the findings of fact for this
decision.
B. SECTION 8(A)(5) ALLEGATIONS40
Under the unilateral change doctrine, an employer’s duty to bargain under the Act
includes the obligation to refrain from changing its employees’ terms and conditions of
employment without first bargaining to impasse with the employees’ collective-bargaining
representative concerning the contemplated changes.15 The Act prohibits employers from taking 45

15 Separate and apart from the unilateral change doctrine, an employer also has a “duty to engage in
JD–01–19
18
unilateral action regarding mandatory subjects of bargaining such as rates of pay, wages, hours
of employment and other conditions of employment. An employer’s regular and longstanding
practices that are neither random nor intermittent become terms and conditions of employment
even if those practices are not required by a collective-bargaining agreement. The party
asserting the existence of a past practice bears the burden of proof on the issue, and must show5
that the practice occurred with such regularity and frequency that employees could reasonably
expect the practice to continue or reoccur on a regular and consistent basis. Notably, an
employer lawfully may take unilateral action that does not alter the status quo (e.g., by
unilaterally making changes to working conditions where the changes in question were part of a
regular and consistent past pattern), and also may unilaterally take actions that do not materially 10
vary in kind or degree from what has been customary in the past. Raytheon Network Centric
Systems, 365 NLRB No. 161, slip op. at 5, 8, 16, 20 (2017); Howard Industries, Inc., 365 NLRB
No. 4, slip op. at 3–4 (2016).
On the issue of whether the parties bargained to an impasse, the Board defines a 15
bargaining impasse as the point in time of negotiations when the parties are warranted in
assuming that further bargaining would be futile because both parties believe they are at the end
of their rope. The question of whether an impasse exists is a matter of judgment based on the
following factors: the bargaining history; the good faith of the parties in negotiations; the length
of the negotiations; the importance of the issue or issues as to which there is disagreement; and 20
the contemporaneous understanding of the parties as to the state of negotiations. The party
asserting impasse bears the burden of proof on the issue. Mike-Sell’s Potato Chip Co., 360
NLRB 131, 139 (2014), enfd. 807 F.3d 318 (D.C. Cir. 2015).
DISCUSSION AND ANALYSIS25
A. INTRODUCTION
The General Counsel alleges that, from about August 19, 2012, to April 11, 2014,
Respondent violated Section 8(a)(5) and (1) of the Act by not providing bargaining unit members30
with retirement benefits and/or retirement contributions, without first notifying the Union and
giving the Union an opportunity to bargain about the conduct and/or its effects, and without first
bargaining with the Union to a good-faith impasse. (GC Exh 1(n) (pars. 8–10).) In support of
that allegation, the General Counsel maintains that Respondent was either a “perfectly clear” or
ordinary successor, and was obligated under the Act to make retirement contributions as part of 35
maintaining the status quo while it bargained with the Union for a new collective-bargaining
agreement. Respondent, on the other hand, maintains that the complaint allegations are time
barred under Section 10(b) of the Act, and also asserts that it did not have an obligation to pay
retirement contributions until it worked out an agreement with the Union (as part of the
collective-bargaining process) to provide such benefits.1640

bargaining regarding any and all mandatory bargaining subjects upon the union’s request to bargain,”
unless an exception to that duty applies. Raytheon Network Centric Systems, 365 NLRB No. 161, slip op.
at 11–12, 16–17 (2017) (emphasis in original).
16 Based on the language in the complaint and the evidence that the parties presented, I have
concluded that the General Counsel only challenges Respondent’s failure, as the employer, to make
retirement contributions on behalf of bargaining unit employees. I do not interpret the complaint as also
asserting that Respondent unlawfully failed to deduct money from bargaining unit employees’ paychecks
JD–01–19
19
B. ARE THE COMPLAINT ALLEGATIONS TIME-BARRED UNDER SECTION 10(B) OF THE
ACT?
As its initial argument, Respondent maintains that the complaint allegations in this case 5
are time-barred under Section 10(b) of the Act. In support of that argument, Respondent asserts
that the Union had actual and/or constructive notice that Respondent was not making retirement
contributions once Respondent began providing paratransit services on August 19, 2012. (R.
Posttrial Br. at 12–14.)
10
Under Section 10(b) of the Act, “no complaint shall issue based upon any unfair labor
practice occurring more than six months prior to the filing of the charge with the Board and the
service of a copy [of the charge] upon the person against whom such charge is made.” The
fundamental policies underlying the 10(b) period are to: bar litigation over past events after
records have been destroyed, witnesses have gone elsewhere, and recollections of the events in 15
question have become dim and confused; and to stabilize existing bargaining relationships. A &
L Underground, 302 NLRB 467, 468 (1991) (citing Bryan Manufacturing Co. v. NLRB, 362 US
411, 419 (1960).
It is well-settled that the 10(b) period begins only when a party has clear and unequivocal 20
notice of a violation of the Act. Either actual or constructive notice of the alleged unfair labor
practice may be sufficient to start the 10(b) period, although constructive notice must be
predicated on a showing that the charging party failed to exercise reasonable diligence (i.e., that
the charging party would have discovered the alleged unfair labor practice in the exercise of
reasonable diligence). Concourse Nursing Home, 328 NLRB 692, 694 (1999); R. G. Burns 25
Electric, 326 NLRB 440, 440–441 & fn. 4 (1998). An unfair labor practice charge will not be
time-barred if the delay in filing is a consequence of conflicting signals or otherwise ambiguous
conduct by the other party. Gulf Coast Rebar, Inc., 365 NLRB No. 128, slip op. at 2 (2017);
Concourse Nursing Home, 328 NLRB at 694. The burden of showing clear and unequivocal
notice is on the party raising the affirmative defense of Section 10(b). Gulf Coast Rebar, Inc., 30
365 NLRB No. 128, slip op. at 2; Leach Corp., 312 NLRB 990, 991 (1993), enfd. 54 F.3d 802
(D.C. Cir. 1995).
When Respondent signed the paratransit services contract in April 2012, it agreed to
provide a retirement plan to bargaining unit employees as an initial term and condition of 35
employment. Because Respondent, as a private entity, could not make retirement contributions
to the pension plan sponsored by Capital Metro, in a July 17, 2012 bargaining session the parties
discussed what retirement plan Respondent might offer. When Respondent indicated that it was
reluctant to administer either a 401(k) plan or a pension plan, the Union suggested that
Respondent could make retirement contributions into an interest-bearing account while the 40
parties bargained for a new collective-bargaining agreement. Thereafter, the parties said little

for the purposes of retirement, or provide a voluntary 401(k) plan (two additional aspects of StarTran’s
retirement package, see FOF, Section II(A)(2)). I note that my more narrow interpretation of the
complaint does not result in a materially different remedy than what might be available with a broader
interpretation – indeed, to the extent that Respondent did not deduct retirement funds from employee
paychecks or provide a 401(k) plan during negotiations with the Union, employees simply retained the
money and used it as they saw fit.
JD–01–19
20
about the matter, though: (a) in August 2012, Capital Metro reconfirmed that Respondent would
comply with the labor and employment terms of the contract (which included the requirement
that Respondent provide a retirement plan to bargaining unit employees as an initial term and
condition of employment); and (b) in September 2012, Respondent began listing retirement
contribution accruals in its general ledger (albeit without telling the Union about that practice). 5
(Findings of Fact (FOF), Section II(D), (F)–(H), (J)–(L).) Notably, there is no evidence of any
established mechanism (such as a monthly statement from a retirement fund) that the Union
could have used to monitor whether Respondent was making retirement contributions. On the
other hand, there is no evidence that the Union (until July 2013) asked Respondent whether it
was making retirement contributions. Ultimately, Respondent did not, until August 6, 2013, 10
unequivocally tell the Union that Respondent had no obligation to make retirement contributions.
By that point, the Union had already, on August 1, 2013, filed the unfair labor practices charge in
this case. (FOF, Section II(M); GC Exh. 1(a).)
Based on those facts, I do not find that the complaint allegations here are time barred 15
under Section 10(b) of the Act. First, the Union did not receive actual notice that Respondent
was not making retirement contributions until August 6, 2013, after the Union had already filed
its unfair labor practices charge. The evidentiary record does not support Respondent’s
argument that the Union had actual notice at an earlier point (such as in July 2012). To the
contrary, in July 2012, the Union suggested that Respondent make retirement contributions to an 20
interest-bearing account while the parties bargained about the terms for a collective-bargaining
agreement, and then the parties put the issue aside until July 2013. When the Union, in a July
2013 bargaining session, asked if Respondent was making retirement contributions,
Respondent’s general manager stated that she believed Respondent was doing so. Thus, the
Union’s suspicions were not confirmed until August 6, 2013, when Respondent’s general 25
manager provided actual notice that Respondent would not be making retirement contributions
for the benefit of bargaining unit employees. Given that sequence of events, the Union’s August
1, 2013 unfair labor practices charge was timely, and in fact was filed before the Union had
actual notice that Respondent was violating the Act.
30
Second, Respondent did not establish that the Union, based on constructive notice, should
have filed its unfair labor practices charge at an earlier date. Respondent maintains that, in
January 2012, the Union and Capital Metro agreed (via partial settlement) to negotiate/arbitrate
the question of what retirement benefits the new paratransit services contractor would have to
provide. In Respondent’s view, when the Union lost in arbitration (in April 2012), the Union 35
was on notice that Respondent, as the new paratransit services contractor, did not have to provide
retirement benefits during negotiations for a new collective-bargaining agreement. I do not find
Respondent’s argument to be persuasive, because Respondent overstates the scope of the
arbitration award. Simply put, the arbitrator only addressed the narrow question of whether
Capital Metro’s new paratransit services contractor had to use the Capital Metro Retirement Plan 40
as its retirement plan for bargaining unit employees. The arbitrator ruled that the answer to that
limited question was “no,” but the fact remains that Respondent, by virtue of its contract with
Capital Metro, was required to provide a retirement plan of some sort as an initial term and
condition of employment. (See FOF, Section II(D)–(E) (noting that the paratransit services
contract states that a retirement plan is a required initial term of employment, and discussing the 45
arbitrator’s ruling).) Thus, while the Union could have been more proactive in trying to verify
that Respondent was making retirement contributions (e.g., by submitting an information request
JD–01–19
21
to Respondent), it was reasonable for the Union to expect Respondent to abide by the terms of its
contract with Capital Metro, including the contractual obligation to provide retirement benefits
when Respondent began providing paratransit services on August 19, 2012.
In sum, I find that the Union filed the unfair labor practices charge in a timely manner, 5
and I find that complaint allegations in this case are not time-barred under Section 10(b) of the
Act. Accordingly, I now turn to the merits of the complaint allegations.
C. IS RESPONDENT EITHER AN ORDINARY SUCCESSOR OR A PERFECTLY CLEAR
SUCCESSOR TO STARTRAN?10
The Board’s successorship doctrine is founded on the premise that, where a bargaining
representative has been selected by employees, a continuing obligation to deal with that
representative is not subject to defeasance solely on grounds that ownership of the employing
entity has changed. Consistent with this view, when a new employer continues its predecessor’s 15
business in substantially unchanged form and hires employees of the predecessor as a majority of
its work force, the new employer is a successor and is obligated to bargain with the union that
represented those employees when they were employed by the predecessor. Nexeo Solutions,
LLC, 364 NLRB No. 44, slip op. at 5 (2016). The essence of successorship is not premised on an
identical re-creation of the predecessor’s customers and business, but rather, on the new 20
employer’s conscious decision to maintain generally the same business and to hire a majority of
its employees from the predecessor in order to take advantage of the trained worked force of its
predecessor. Allways East Transportation, Inc., 365 NLRB No. 71, slip op. at 2 (2017).
In NLRB v. Burns Security Services, 406 U.S. 272, 281–295 (1972), the Supreme Court 25
held that a successor employer is not bound by the substantive terms of a collective-bargaining
agreement negotiated by the predecessor and is ordinarily free to set initial terms and conditions
of employment unilaterally. The Court explained that the duty to bargain will not normally arise
before the successor sets initial terms because it is not usually evident whether the union will
retain majority status in the new work force until after the successor has hired a full complement30
of employees. Id. at 295. The Court recognized, however, that “there will be instances in which
it is perfectly clear that the new employer plans to retain all of the employees in the unit and in
which it will be appropriate to have him initially consult with the employees’ bargaining
representative before he fixes terms.” Id. at 294–295.
35
1. IS RESPONDENT AN ORDINARY SUCCESSOR?
An employer is a successor employer obligated to recognize and bargain with the union
representing the predecessor’s employees when (1) the successor acquires, and continues in
substantially unchanged form, the business of a unionized predecessor (the “substantial 40
continuity” requirement; (2) the successor hires, as a majority of its workforce at the acquired
facility, union-represented former employees of the predecessor (the “workforce majority”
requirement); and (3) the unit remains appropriate for collective bargaining under the successor’s
operations. Ports America Outer Harbor, LLC, 366 NLRB No. 76, slip op. at 2 (2018).
45
To determine whether, in the totality of the circumstances, there is substantial continuity
between the predecessor and alleged successor, the Board considers the following factors:
JD–01–19
22
whether the business of both employers is essentially the same; whether the employees of
the new company are doing the same jobs in the same working conditions under the same
supervisors; and whether the new entity has the same production process, produces the
same products, and basically has the same body of customers.5
Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 43 (1987); see also Allways East
Transportation, Inc., 365 NLRB No. 71, slip op. at 2. In conducting the analysis, the Board
keeps in mind the question whether those employees who have been retained will understandably
view their job situations as essentially unaltered. Fall River Dyeing & Finishing Corp. v. NLRB, 10
482 U.S. at 43. The Board determines whether the workforce majority requirement has been met
based on the time that the successor has hired a substantial and representative complement of its
employees. Ports America Outer Harbor, LLC, 366 NLRB No. 76, slip op. at 2.
As a preliminary matter, I note that certain issues are not in dispute regarding whether 15
Respondent is an ordinary successor to StarTran. First, Respondent concedes that the bargaining
unit is appropriate. (See GC Exhs. 1(n), (r), par. 7(a).) Second, there is no dispute that the
workforce majority requirement has been met here. When Respondent began providing
paratransit services on August 19, 2012, under its contract with Capital Metro, a majority of
Respondent’s employees in the bargaining unit were former StarTran employees who were 20
represented by the Union. Indeed, Respondent hired all but one of the union-represented
employees who had worked for StarTran, and there is no evidence that Respondent made any
other hires that undermined (from a numerical standpoint) the majority support for the Union in
the bargaining unit. (FOF, Section II(L).)
25
I also find that, based on the evidentiary record, there is substantial continuity between
StarTran and Respondent. Both entities provided paratransit services to Austin residents. To
provide those services after it began operations on August 19, 2012, Respondent hired almost the
entire StarTran bargaining unit as its employees, and generally directed them to continue
performing the same jobs that they held while employed by StarTran. Further, Respondent 30
allowed bargaining unit members to keep their seniority, allowed drivers to keep the same
schedules and routes that they established with StarTran, and even had employees use the same
uniforms (except for replacing the StarTran patch with Respondent’s patch). That level of
continuity was by design, partly because Respondent made it clear that it wished to hire 100% of
the existing (StarTran) workforce, and partly because Respondent’s contract with Capital Metro 35
required Respondent to maintain a certain level of consistency with StarTran in the terms and
conditions of employment for bargaining unit members. (FOF, Section II(D), (F)–(G), (J).)
To be sure, Respondent did implement some changes when it began operations. Most of
the managers and supervisors that Respondent hired were new to the facility and/or to the 40
positions that they held. Respondent also made some changes to the procedures for employees to
sign in and out, and to the procedures for drivers to obtain their vehicles and manifests each day.
Notwithstanding those changes (which were relatively minor in the grand scheme of things), I
find that the General Counsel established substantial continuity between StarTran and
Respondent, such that bargaining unit members would understandably view their job situations 45
as essentially unaltered. See Allways East Transportation, Inc., 365 NLRB No. 71, slip op. at 3
(finding substantial continuity because the respondent provided the same general school bus
JD–01–19
23
transportation service as the predecessor and bargaining unit members performed the same
general jobs, and noting that even though the respondent had a new facility, different
supervisors, and different employee handbook policies, bargaining unit members’ jobs remained
essentially unchanged); Van Lear Equipment, Inc., 336 NLRB 1059, 1063–1064 (2001) (finding
substantial continuity, even though the employer provided a different supervisor, different pay 5
rates and benefits, and newer buses to drive, where bus drivers performed the same work that
they performed for the predecessor).
In sum, I find that the General Counsel established that Respondent is an ordinary
successor to StarTran. The workforce majority requirement and the appropriateness of the 10
bargaining unit were not in dispute, and the General Counsel met its burden of proving
substantial continuity between StarTran and Respondent.
2. IS RESPONDENT A PERFECTLY CLEAR SUCCESSOR?
15
In Spruce Up Corp., 209 NLRB 194, 195 (1974), enfd. per curiam 529 F.2d 516 (4th Cir.
1975), the Board addressed the “perfectly clear” successor exception, and found it was
“restricted to circumstances in which the new employer has either actively or, by tacit inference,
misled employees into believing they would all be retained without change in their wages, hours,
or conditions of employment, or at least to circumstances where the new employer . . . has20
failed to clearly announce its intent to establish a new set of conditions prior to inviting former
employees to accept employment.” Acknowledging that “the precise meaning and application of
the Court’s caveat is not easy to discern,” the Board reasoned that “[w]hen an employer who has
not yet commenced operations announces new terms prior to or simultaneously with his
invitation to the previous work force to accept employment under those terms, we do not think it 25
can fairly be said that the new employer ‘plans to retain all of the employees in the unit,’ as that
phrase was intended by the Supreme Court,” because of the possibility that many of the
employees will reject employment under the new terms, and therefore the union’s majority status
will not continue in the new work force. Id.
30
In subsequent cases, the Board has clarified that the perfectly clear successor exception is
not limited to situations where the successor fails to announce initial employment terms before it
formally invites the predecessor’s employees to accept employment. Rather, a new employer
has an obligation to bargain over initial terms when it displays an intent to employ the
predecessor’s employees without making it clear that their employment will be on different 35
terms from those in place with the predecessor. Thus, in applying the “perfectly clear” exception
of Burns, the Board scrutinizes not only the successor’s plans regarding the retention of the
predecessor’s employees but also the timing and clarity of the successor’s expressed intentions
concerning existing terms and conditions of employment. Creative Vision Resources, LLC, 364
NLRB No. 91, slip op. at 2–3 (2016), enfd. 882 F.3d 510 (5th Cir. 2018); see also Nexeo 40
Solutions, LLC, 364 NLRB No. 44, slip op. at 5–7; Canteen Co., 317 NLRB 1052, 1053–1054
(1995), enfd. 103 F.3d 1355 (7th Cir. 1997).17

17 The Board’s decisions in Creative Vision Resources, Nexeo Solutions and Canteen Co. are binding
authority that I am required to follow. As an aside, however, I note that individual Board members have
raised questions about how the Board in those cases interpreted the decision in Spruce Up. See, e.g.,
Walden Security, 366 NLRB No. 44, slip op. at 1 fn. 4 (2018) (indicating that two of the Board members
JD–01–19
24
If an employer indeed is a perfectly clear successor, then it has an obligation “to maintain
the status quo of conditions of employment under the predecessor until it bargains to agreement
or impasse with the representative union over terms of a new collective-bargaining contract for
the successor workforce.” First Student Inc., a Division of First Group America, 366 NLRB No. 5
13, slip op. at 3 (2018); see also Paragon Systems, Inc., 364 NLRB No. 75, slip op. at 1 (2016)
(explaining that a perfectly clear successor has “an obligation to bargain with the Union prior to
setting initial terms and conditions of employment that differ[] from those under the
predecessor’s collective-bargaining agreement with the Union”).
10
The evidentiary record here shows that on April 24, 2012, the day after it was awarded
the paratransit services contract, Respondent notified bargaining unit employees that it would
offer them jobs, pay, health and welfare benefits and seniority that were comparable to what they
had with StarTran, as well as a retirement plan that would be bargained with the Union. The
only caveat that Respondent expressed concerning its hiring plans was that employees would 15
need to satisfy physical, drug and criminal background screening requirements. (FOF, Section
II(G).) Between that announcement and the day (August 19, 2012) that Respondent began
providing paratransit services under the contract, Respondent reiterated its intent to hire all
employees in the bargaining unit, and did not articulate that it intended to establish different
terms and conditions of employment than what employees had with StarTran. (FOF, Section 20
II(J)–(K).) As noted above, that consistency was by design, because it was virtually required by
Respondent’s contract with Capital Metro.18
Under the circumstances present here, I find that the Respondent is a “perfectly clear”
successor to StarTran. On April 24, 2012, Respondent demonstrated a clear intent to employ 25
StarTran’s employees without simultaneously or previously making it clear that their
employment would be on different terms than what the employees had with StarTran. Indeed, to
the extent that Respondent described the terms and conditions of employment that it would offer,
Respondent indicated that its initial employment terms would be comparable to StarTran’s
employment terms. On the specific issue of the retirement plan, Respondent stated that it would 30
bargain with the Union about the terms of such a plan, and did not state that employees would
have different retirement benefits (or no retirement benefits) while bargaining was in progress.
As a result, bargaining unit employees reasonably would have believed that Respondent planned
to retain them without any material changes in their wages, hours, or conditions of employment
(including retirement benefits), pending the outcome of bargaining with the Union. See First 35
Student Inc., a Division of First Group America, 366 NLRB No. 13, slip op. at 3 (finding that the
employer was a perfectly clear successor because it “clearly and consistently communicated its
intent to retain the School District’s unit employees” and did not simultaneously or beforehand
clearly announce its intent to set new terms and conditions of employment); Nexeo Solutions,

on the panel might be inclined to reexamine the Board’s precedent in this area).
18 I recognize that, in their July 16–17, 2012 bargaining sessions, Respondent and the Union did
discuss what terms and conditions of employment should apply while the parties negotiated the terms of a
new collective-bargaining agreement. In those sessions, Respondent expressed some reservations about
simply following the terms of the StarTran collective-bargaining agreement because it viewed aspects of
that agreement as too complicated. Notably, however, Respondent did not articulate any new terms and
conditions of employment that it intended to follow, nor did it notify employees that their terms and
conditions of employment with Respondent would be different from StarTran. (FOF, Section II(J).)
JD–01–19
25
LLC, 364 NLRB No. 44, slip op. at 7 (same, where: the employer notified unit employees that
they would transfer to the new company, and was silent regarding terms and conditions of
employment or any intent to establish a new set of conditions; and the employer noted, in a
question and answer session with employees, that the terms of the purchase agreement required
the employer to provide transferred employees with wages and benefits that were comparable to 5
what the predecessor provided); see also Road & Rail Services, 348 NLRB 1160, 1161–1162
(2006) (finding that an employer was a perfectly clear successor where the employer clearly
expressed its intent to hire existing employees, did not unilaterally establish initial terms and
conditions of employment, and indicated that it would negotiate with the Union about changes to
existing employment terms).1910
In an effort to work around its April 24, 2012 statement to bargaining unit members,
Respondent asserts that Capital Metro notified employees, on April 20 and June 6, 2012, that
their retirement benefits would change. (See R. Posttrial Br. at 15.) That argument falls short.
On April 20, 2012, Capital Metro informed employees that Respondent had been recommended 15
as the new paratransit contractor. Capital Metro did not tell employees that their retirement
benefits would change as part of that transition. Instead, Capital Metro told employees that they
were guaranteed a retirement plan once Respondent commenced operations, but advised that
based on the April 6, 2012 arbitration decision, Capital Metro was not obligated to require
Respondent to be bound by the existing retirement plan. (See FOF, Section II(F).) As noted 20
above, four days later, Respondent notified employees that it would bargain with the Union
about the terms of a retirement plan. As for Capital Metro’s June 6, 2012 letter to employees,
Capital Metro reiterated that it was not obligated to require Respondent to be bound by the
existing retirement plan, but added its view that the labor agreement (and the retirement plans
therein) did not carry over to the new contractors. Capital Metro, however, was not speaking for 25
Respondent at the time, and in any event, the proverbial ship had already sailed on April 24
when Respondent expressed its intent to offer jobs to all bargaining unit employees, and its intent
to bargain with the Union about the terms of a retirement plan. (See FOF, Section II(G), (I).)
Accordingly, as noted above, I find that the General Counsel demonstrated that Respondent is a
perfectly clear successor to StarTran.30

19 In a contradictory turn, the General Counsel (in addition to arguing that Respondent is a perfectly
clear successor, see GC Posttrial Br. at 19–25) argued in its posttrial brief that Respondent should not be
considered a perfectly clear successor because when Respondent expressed its intent to employ
StarTran’s employees, the Union and unit employees already were aware (based on the April 6 arbitrator
decision) that employees would not be able to participate in the StarTran pension plan. (GC Posttrial Br.
at 25–26.) To the extent that the General Counsel maintains that a change in Board law would be
necessary for this argument to be valid, it suffices to observe that I am bound to follow existing Board
precedent. As a point of fact, however, I note that the arbitrator’s decision did not preclude Respondent
from implementing a pension plan comparable to StarTran’s plan; to the contrary, the arbitrator only
determined that Capital Metro did not have to require Respondent to use StarTran’s pension plan as its
retirement plan. (See FOF, Section II(E).) Thus, the arbitrator’s decision did not put the Union or
employees on notice that retirement benefits would change (let alone establish what retirement benefits
Respondent would provide to employees as initial employment terms).
JD–01–19
26
D. DID RESPONDENT VIOLATE THE ACT BY NOT MAKING RETIREMENT CONTRIBUTIONS
DURING COLLECTIVE-BARGAINING AGREEMENT NEGOTIATIONS?
The General Counsel contends that Respondent, as a perfectly clear successor, was 5
obligated to make retirement contributions while Respondent and the Union negotiated a new
collective-bargaining agreement. The General Counsel contends, in the alternative, that
Respondent had that obligation even as an ordinary successor. Respondent denies having an
obligation to make retirement plan contributions as part of any status quo during negotiations,
regardless of whether it is a perfectly clear or ordinary successor. I address each of those issues 10
below.
1. OBLIGATION TO MAKE RETIREMENT CONTRIBUTIONS AS A PERFECTLY CLEAR
SUCCESSOR?
15
As a perfectly clear successor, Respondent was obligated to bargain with the Union
before setting initial terms and conditions of employment that differ from those under the
predecessor’s collective-bargaining agreement with the Union. See Paragon Systems, Inc., 364
NLRB No. 75, slip op. at 1. While Respondent was not required to adopt StarTran’s collective-
bargaining agreement, Respondent was required under the Act to maintain the status quo 20
conditions of employment under StarTran (the predecessor) until Respondent and the Union
bargained to agreement or impasse over terms of a new collective-bargaining contract for the
successor workforce. See First Student Inc., a Division of First Group America, 366 NLRB No.
13, slip op. at 3.
25
Notably, Respondent’s obligation to maintain the status quo applied to terms of
employment that would be the subject of negotiations (like the retirement plan at issue here).
Thus, even if Respondent wished to offer a different retirement plan than StarTran, as a perfectly
clear successor, Respondent was required to maintain the status quo of the StarTran retirement
plan until it negotiated a new retirement plan with the Union (or until bargaining resulted in a 30
good-faith impasse). See First Student Inc., a Division of First Group America, 366 NLRB No.
13, slip op. at 3.
With that stated, I pause to observe that one of the wrinkles here was that Respondent, as
a private employer, was not eligible to contribute to the government employer pension plan that 35
StarTran (and Capital Metro) offered. (FOF, Section II(A)(2), (F).) It does not follow from that
fact, however, that Respondent could simply offer no retirement plan at all, particularly with no
notice to bargaining unit members at the time (or before) Respondent expressed its intent to hire
them. Instead, as a perfectly clear successor, Respondent needed to provide a comparable
retirement plan of some sort to maintain the status quo during collective-bargaining agreement 40
negotiations (such as by making equivalent retirement contributions into an interest paying
account, as the Union suggested). To the extent that Respondent did not make any such
retirement contributions for the benefit of bargaining unit employees between August 19, 2012,
and April 28, 2014, Respondent violated Section 8(a)(5) and (1) of the Act.20

20 In connection with the proposition that Respondent needed to make retirement contributions as part
of maintaining the status quo, the General Counsel, in another moment of contradiction, argues that the
JD–01–19
27
2. OBLIGATION TO MAKE RETIREMENT CONTRIBUTIONS AS AN ORDINARY SUCCESSOR?
If Respondent was an ordinary successor (and not a perfectly clear successor), then
Respondent was not bound by the substantive terms of the Union’s collective-bargaining 5
agreement with StarTran, and had the opportunity to set initial terms and conditions of
employment unilaterally. NLRB v. Burns Security Services, 406 U.S. at 281–295. The Board
has explained, however, that if an ordinary successor foregoes that opportunity by remaining
silent about certain terms and conditions of employment, then the successor implicitly tells
bargaining unit employees that those unaddressed terms and conditions will remain the same, 10
and the successor cannot later unilaterally depart from those terms and conditions. See 301
Holdings, LLC, 340 NLRB 366, 367–368 (2003) (finding that a successor employer that told
employees about a scheduling change when it set initial terms and conditions of employment, but
remained silent as to all other working conditions, implicitly accepted the status quo for all other
working conditions, and could not unilaterally change those other conditions); see also Nexeo 15
Solutions, LLC, 364 NLRB No. 44, slip op. at 13 fn. 38 (indicating that it was unlawful for an
ordinary successor employer to unilaterally change practices that were not part of the initial
employment terms that the employer announced and implemented).
Respondent, through its silence, essentially forfeited its opportunity to set initial terms 20
and conditions of employment regarding its retirement plan. Specifically, when Respondent, on
April 24, 2012, announced its plan to hire virtually all employees in the StarTran bargaining unit,
Respondent promised to provide a retirement plan, but said nothing about the terms of that plan
(other than promising to negotiate retirement plan terms with the Union). Respondent continued
to take that position up to August 19, 2012, when it formally hired all but one of the employees 25
in the StarTran bargaining unit and began providing paratransit services. (FOF, Section II(G),
(J)–(K).) By taking that approach, Respondent implicitly told bargaining unit employees that
their retirement benefits would remain the same (pending negotiations with the Union), and
thereafter was precluded from unilaterally changing the retirement plan by not making retirement
contributions. Accordingly, I find that even as an ordinary successor, Respondent violated 30
Section 8(a)(5) and (1) of the Act to the extent that it did not make retirement contributions for
bargaining unit employees between August 19, 2012, and April 28, 2014.
In sum, I find that the General Counsel established that Respondent, from August 19,
2012, to April 28, 2014, violated Section 8(a)(5) and (1) of the Act by unilaterally deciding not 35
to make retirement contributions for the benefit of bargaining unit employees, without first
notifying the Union and giving the Union an opportunity to bargain about the conduct and/or its
effects, and without first bargaining with the Union to a good-faith impasse. Respondent’s
defenses to the allegation in the complaint fall short.
40

Board should overrule its decision in StaffCo of Brooklyn, LLC, 364 NLRB No. 102 (2016), enfd., 888
F.3d 1297 (D.C Cir. 2018), a case in which the Board held that the employer violated the Act by
unilaterally ending pension contributions when the collective-bargaining agreement expired. (See GC
Posttrial Br. at 30–32.) As I have previously noted, I am bound to follow existing Board precedent,
including the decision in StaffCo to the extent that it is applicable here.
JD–01–19
28
CONCLUSIONS OF LAW
1. Respondent MV Transit and/or MV Transportation, Inc. is an employer within the
meaning of Section 2(2), (6) and (7) of the Act.
5
2. Charging Party Amalgamated Transit Union, Local 1091 is a labor organization
within the meaning of Section 2(5) of the Act, and represents Respondent’s transportation and
maintenance employees in the following appropriate bargaining unit:
All transportation and maintenance employees employed by Respondent, excluding any 10
office clerical employees, guards, supervisors, and confidential and managerial
employees as defined in the Act
3. Respondent, as a “perfectly clear” successor to StarTran, violated Section 8(a)(5) and
(1) of the Act by, from August 19, 2012, to April 28, 2014, unilaterally changing the initial terms 15
and conditions of employment for bargaining unit employees, specifically by not making
retirement contributions, without first notifying the Union and giving it an opportunity to
bargain.
4. Alternatively, Respondent, as an ordinary successor to StarTran, violated Section 20
8(a)(5) and (1) of the Act by, from August 19, 2012, to April 28, 2014, implicitly (through its
silence) telling bargaining unit employees that their retirement benefits would remain the same,
and then unilaterally changing bargaining unit employee retirement benefits by not making
retirement contributions without first notifying the Union and giving it an opportunity to bargain.
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 is a perfectly clear successor and an ordinary
successor to StarTran, and that Respondent violated Section 8(a)(5) and (1) of the Act by
unilaterally deciding not to make retirement contributions for bargaining unit employees without
first bargaining with the Union to agreement or impasse, I shall require Respondent, on request
by the Union, to rescind the unlawful unilateral change and retroactively restore the retirement 35
contribution terms and conditions of employment established by its predecessor (to the extent
practicable, given that the retirement plan provided by StarTran was a government plan, and
Respondent is a private entity). Respondent shall also be required to make employees whole for
any loss of wages or other benefits they suffered as a result of Respondent’s unlawful unilateral
change in the manner set forth in Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 40
502 (6th Cir. 1971), with interest as prescribed in New Horizons, 283 NLRB 1173 (1987),
compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010).
In addition, I shall order Respondent to remit all payments it owes to employee benefit
funds, including any additional amounts due the funds on behalf of the unit employees in 45
accordance with Merryweather Optical Co., 240 NLRB 1213 (1979). If there is no applicable
benefit fund that will accept such contributions, Respondent shall deposit an amount equal to the
JD–01–19
29
required contributions in an escrow account and negotiate with the Union over how the moneys
will be distributed to make the unit employees whole.21 Further, Respondent shall be required to
reimburse unit employees for any expenses ensuing from its failure to make the required
contributions, as set forth in Kraft Plumbing & Heating, 252 NLRB 891 fn. 2 (1980), enfd. mem.
661 F.2d 940 (9th Cir. 1981), such amounts to be computed in the manner set forth in Ogle 5
Protection Service, supra, with interest as prescribed in New Horizons, supra, compounded daily
as prescribed in Kentucky River Medical Center, supra.
Finally, I shall require Respondent to compensate affected bargaining unit employees for
the adverse tax consequences, if any, of receiving lump-sum backpay awards, and file with the 10
Regional Director for Region 16, within 21 days of the date the amount of backpay is fixed either
by agreement or Board order, a report allocating the backpay awards to the appropriate calendar
years for each employee. AdvoServ of New Jersey, Inc., 363 NLRB No. 143 (2016). The
Regional Director will then assume responsibility for transmitting the report to the Social
Security Administration at the appropriate time and in the appropriate manner.15
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended22
ORDER20
Respondent, MV Transit and/or MV Transportation, Inc., Austin, Texas, its officers,
agents, successors, and assigns, shall
1. Cease and desist from25
(a) Failing and refusing to bargain in good faith with the Amalgamated Transit Union,
Local 1091 (the Union) in the following appropriate unit, by unilaterally changing the terms and
conditions of employment of unit employees, including retirement contributions that Respondent
makes on behalf of unit employees, without first providing notice to the Union and an 30
opportunity to bargain to agreement or impasse. The bargaining unit is:
All transportation and maintenance employees employed by Respondent, excluding any
office clerical employees, guards, supervisors, and confidential and managerial
employees as defined in the Act.35

21 This aspect of the remedy tracks the remedy that the Board ordered in StaffCo of Brooklyn, LLC,
364 NLRB No. 102, slip op. at 5. I decline the Union’s request that I direct Respondent to deposit funds
into bargaining unit employees’ 401(k) accounts, because (among other reasons) the current 401(k) plan
did not exist when the unfair labor practices occurred, and because it is not clear whether all affected unit
employees remain eligible to participate in the 401(k) plan. The parties, of course, remain free to
negotiate about whether Respondent should distribute the funds that it owes (as a result of this decision)
to the current 401(k) plan.
22 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–01–19
30
(b) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
5
(a) Before implementing any changes in the bargaining unit employees’ retirement
contributions or other terms and conditions of employment, notify and, on request, bargain with
the Union as the exclusive collective-bargaining representative of employees in the bargaining
unit described above.
10
(b) To the extent it has not already done so, on request by the Union, rescind any
changes in retirement contributions for unit employees that were unlawfully unilaterally
implemented on August 19, 2012.
(c) Make the unit employees whole, with interest, for any losses sustained as a result of 15
the unilateral changes to retirement contributions in the manner set forth in the remedy section of
this decision.
(d) Compensate affected employees for the adverse tax consequences, if any, of
receiving lump-sum backpay awards, and file with the Regional Director for Region 16, within 20
21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report
allocating the backpay awards to the appropriate calendar years for each employee.
(e) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the Board 25
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.
(f) Within 14 days after service by the Region, post at its facility in Austin, Texas, copies 30
of the attached notice marked “Appendix.”23 Copies of the notice, on forms provided by the
Regional Director for Region 16, after being signed by Respondent’s authorized representative,
shall be posted by Respondent and maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are customarily posted. In addition to physical
posting of paper notices, the notices shall be distributed electronically, such as by email, posting 35
on an intranet or an internet site, and/or other electronic means, if Respondent customarily
communicates with its employees by such means. Reasonable steps shall be taken by 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, Respondent has gone out of business or closed
the facility involved in these proceedings, Respondent shall duplicate and mail, at its own 40
expense, a copy of the notice to all current employees and former employees employed by
Respondent at any time since August 19, 2012.

23 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–01–19
31
(g) Within 21 days after service by the Region, file with the Regional Director for
Region 16 a sworn certification of a responsible official on a form provided by the Region
attesting to the steps that Respondent has taken to comply.
5
Dated, Washington, D.C. January 9, 2019
____________________
Geoffrey Carter10
Administrative Law Judge
13a4frAlr- 6,-x—
JD–01–19
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 fail and refuse to bargain in good faith with the Amalgamated Transit
Union, Local 1091 (the Union) in the following appropriate unit, by unilaterally changing the
terms and conditions of employment of unit employees, including retirement contributions that
we make on behalf of unit employees, without first providing the Union with notice and an
opportunity to bargain. The bargaining unit is:
All transportation and maintenance employees that we employ, excluding any office
clerical employees, guards, supervisors, and confidential and managerial employees as
defined in the Act.
WE WILL NOT 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.
WE WILL, before implementing any changes in the bargaining unit employees’
retirement contributions or other terms and conditions of employment, notify and, on request,
bargain with the Union as the exclusive collective-bargaining representative of employees in the
bargaining unit.
WE WILL, to the extent we have not already done so, on request by the Union, rescind
any changes in retirement contributions for unit employees that were unlawfully unilaterally
implemented on August 19, 2012.
WE WILL make our unit employees whole for any losses they sustained due to the
unlawfully imposed change to retirement contributions, with interest.
JD–01–19
WE WILL compensate affected employees for the adverse tax consequences, if any, of
receiving lump-sum backpay awards, and WE WILL file with the Regional Director for Region
16, within 21 days of the date the amount of backpay is fixed, either by agreement or Board
order, a report allocating the backpay awards to the appropriate calendar years for each
employee.
MV TRANSIT AND/OR
MV TRANSPORTATION, INC.
(Employer)
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.
819 Taylor Street, Room 8A24, Fort Worth, TX 76102-6178
(817) 978-2921, Hours: 8:15 a.m. to 4:45 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/16-CA-110465 or by using the QR code
below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.
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, (817) 978-2941.