Durham School Services, L.P.

National Labor Relations Board - Administrative Judge Opinions

Oct 30, 2015

15-CA-106217 (N.L.R.B. Oct. 30, 2015)

JD–62–15
Santa Rosa County, FL
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
DURHAM SCHOOL SERVICES, L.P.
And Cases 15-CA-106217
15-CA-112948
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN 15-CA-145094
AND HELPERS LOCAL UNION NO. 991 15-CA-145797
Charles Rogers, Esq., for the General Counsel.
Charles P. Roberts, III, Esq. (Constangy, Brooks,
Smith & Prophete, LLP), of Winston-Salem, North Carolina
for the Respondent.
Lavon Lindsey, of Mobile Alabama, for the Charging Party.
DECISION
STATEMENT OF THE CASE
MICHAEL A. ROSAS, Administrative Law Judge. The case was tried in Fort Walton
Beach, Florida, on August 10-12, 2015. The controversy involves an assortment of alleged unfair
labor practices by Durham School Services L.P. (the Company) at its Santa Rosa County, Florida
school bus facilities between February 2013 and December 2014. The root of contention begins
with a contested representation election in February 2013 between the Company and Teamsters,
Chauffeurs, Warehousemen and Helpers Local Union No. 991 (the Union). With one exception,
the complaint alleges violations of Section 8(a)(1) of the National Labor Relations Act (the Act)1
consisting of coercive statements made by Company supervisors around the time of the election
and continuing sporadically for nearly two years thereafter while the election dispute winds its
way through the appellate process. The remaining charge alleges the Company violated Section
8(a)(3) of the Act by decreasing the work hours and pay of employee Diane Bence, a prominent
leader of the Company’s prounion contingent.
On the entire record,2 including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and the Company, I make the following

1 29 USC §§ 151–169.
2 The General Counsel’s unopposed motion to correct the record, dated September 16, 2015, is
granted and received in evidence as GC Exh. 22.
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2
FINDINGS OF FACT
I. JURISDICTION5
The Company, a limited partnership, provides school bus transportation services from
offices and places of business in Milton, Pace, and Navarre, Florida, where it annually derives
gross revenues in excess of $250,000 and purchases and receives goods valued in excess of
$5000 directly from points outside the State of Florida. The Company admits, and I find, that it is 10
an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act
and the Union is a labor organization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
15
A. The Company’s Operations
The Company is in the midst of a 5-year contract providing school bus transportation
services for the Santa Rosa County, Florida school district. It operates three facilities in three
towns—Navarre, Milton, and Pace—from which drivers transport students to and from school. 20
The Company policy regarding the leave or time-off issue in this case states, in pertinent
part: “in special circumstances, the Company may grant leave for personal reasons, but never for
taking employment elsewhere or going into business for oneself.” The Company only provides
paid days of absence for bereavement leave. All other leave or time off is unpaid.325
B. The Union Campaign
At the time that the Company began Santa Rosa County operations in 2008, its drivers
were represented by the Amalgamated Transit Union (ATU). However, the employees became 30
dissatisfied with ATU’s representation and decertified it in 2009. In November 2012, after an
unsuccessful campaign to designate the United Brotherhood of Carpenters (UBC), employees
initiated a campaign to bring in the Union. The Union prevailed in the election vote tally on
February 22, 2013, objections to the results were overruled and, on May 9, 2014, the Board
certified the Union as the Company employees’ labor representative. The Company appealed and 35
the matter is pending before the United States Court of Appeals for the D.C. Circuit.
Diane Bence, employed by the Company since 2008, has been a major cog in the Union’s
drive for recognition since the campaign began in October 2012. Bence, who drives her regular
bus routes out of the Navarre facility, was active in the ATU decertification campaign and the 40
unsuccessful UBC campaign. In October and November 2012, Bence informed Bauman of her
intentions to bring in the Union to represent the Company’s Santa Rosa County drivers. Bence’s

3 Leave and time off during the school year referred to interchangeably. In either instance, Company
approval is required. (GC Exh. 5 at 56.)
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3
open and notorious support for the Union, including the wearing of prounion shirts and pins on
her work clothing, continued through the election and continues to the present.4
C. Company Statements During the Campaign
5
During the month leading up to the February 22 representation election, Bauman made
several visits to the Company’s Santa Rosa facilities and served as its spokesman in presenting
its argument against union representation. His standard message was that the vote was secret, the
Company was working to improve communications, and a union was not necessary.
10
Bauman was well aware of Bence’s leading role in the Union’s organizing campaign, as
well as in previous campaigns. Indeed, Bence usually approached Bauman whenever he visited
the Navarre facility to discuss work-related issues. In one instance during the week leading up to
the election, he asked Bence as she entered the Navarre facility, “I can count on your support in
our vote?” Bence replied “no.” A few days later, as the election drew closer, Bauman asked 15
Bence, “Isn’t that vest getting a little heavy?” The vest had several prounion pins on it.5
Bauman’s advocacy continued into the day of the election. On that day, he encountered
Donna Marcus, a Milton facility driver assigned to office duty at the Navarre facility due to an
injury. He asked Marcus, who was not wearing any election-related paraphernalia, “I guess we 20
can count on you for a no vote, right?” Marcus nodded in the affirmative.6
D. Bence’s Request For Time Off To Attend The London Meeting
Bence did not limit her advocacy on behalf of the Union to this country. In March 2013, 25
she traveled to London, England, over the spring break to participate in a union protest at the
headquarters of National Express, the Company’s parent organization. The following month, she
decided to return to London in May to attend the National Express’ shareholders meeting and
complain about Company working conditions in Santa Rosa County.
30
As the London meeting was scheduled during the school year, Bence submitted a time-
off request on April 23 stating she would be “out of state” during the period of May 6 to 10.7 On
April 29, Bence asked Willoughby, her supervisor, about the status of the time-off request.8 He

4 The extent of Bence’s union activity since 2012 is not disputed. (Tr. 78–83, 108–111.)
5 While I credit Bence’s testimony over Bauman’s denial that he asked if he could count on her vote
and remarked about the prounion pins, I also credit his testimony that Bence frequently approached him
to discuss various issues. (Tr. 84–85, 283–300.)
6 I found Marcus’ testimony credible. A former Company employee from September 2011 until
February 20, 2014, she denied wearing a prounion tee shirt. (Tr. 152–154.) Bauman’s assertion that
Marcus wore a union shirt was premised on faulty recollection regarding the facility to which she was
regularly assigned. Moreover, his denial that he even spoke with her was less than credible since he
admitted approaching employees about the election during that period of time. (Tr. 288–290, 301–304.)
7 The leave or time off form does not have a title. (GC Exh. 18; Tr. 85, 125.)
8 In cases where employees requested an extended amount of time off, Willoughby would ask about
the purpose of the leave or time off if it was not stated in the request. (Tr. 31, 155–156.) This was not the
case with Bence’s April 2013 time-off request. (Tr. 125, 128–129.)
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did not know, but called his supervisor, Bob Downin, the area manager. Downin. This was
unusual, since the Company routinely approves leave requests involving out of state travel.9
Downin also did not know the answer, but called back a short time later with Bauman on
the line. As Bence and Willoughby listened over the speaker phone, Bauman asked Bence about 5
the purpose of the trip, whether she was being compensated for the trip and who was paying her
expenses. Bauman, already knowing the likely purpose of Bence’s time off request, reminded
Bence of the Company’s policy against other employment while on Company leave and the
prohibition against the Union compensating her for the trip. Bence replied that a Company
“pension holder” asked her to attend. Bauman asked again how Bence was being compensated 10
and who was paying her expenses. Bence reiterated her lack of knowledge on that point. Bauman
concluded the conversation by asking Bence to find out and get back to him. After further
discussion, Bence stated that she would call the pension holder to see if she was being
compensated. This ended the conversation.10
15
The next day, April 30, Bence attempted to contact Bauman with the answer, but they did
not connect until May 1, when Bauman and Downin met her at the Milton facility. In response to
Bauman’s question as to whether she was being compensated, Bence acknowledged that she
would receive a lump-sum payment for the trip. Bauman reiterated that, in accordance with
Company policy, Bence’s leave request would only be approved if the Union was not 20
compensating her for the trip. Bence replied that a shareholder was compensating her. The
conversation ended with Bauman indicating that he would get back to Bence with a decision.
The Company subsequently granted Bence’s leave request. Although she never identified the
shareholder, it was Kim Keller, a union organizer.11
25
The day after Bence’s leave request was approved, Downin met Bence at her bus before
her afternoon bus run. Downin asked Bence what she intended to say at the London meeting.
Bence said she would speak about “issues.” A few days later, Bauman met Bence around the
same time and location and also asked what she intended to say at the London meeting. Bence
replied that she would speak about workers’ issues. Bauman told her to have a good time.1230
E. Bence Goes To London
Bence traveled to London and attended National Express’ shareholder meeting beginning
on May 8. On May 9, she got the opportunity to address the shareholders and hierarchy of the 35

9 The undisputed and credible testimony of Bence and another driver, Vera Nowling-Driggers,
established that, prior to April 2013, no one ever asked them about the purpose of requested leave or time
off for out of state or other travel. (Tr. 104–105, 175, 183,)
10 I find it unlikely that, in the absence of Bauman mentioning the policy, Bence volunteered to find
out the source of compensation for her trip. (Tr. 85–88, 91, 125, 128.) Moreover, Bauman acknowledged
he already knew the answer to his question since Bence traveled to London in March for a similar
purpose. Prior to this conversation, he also consulted with counsel about the application of the Company’s
leave policy to the funding of Bence’s trip. (Tr. 290–294, 307–309.)
11 Neither the connection of Keller to the Santa Rosa labor dispute nor the Company source who
made the final decision to approve the leave was specified. (Tr. 88–93, 98–99, 293–296, 311–312.)
12 I based these findings on Bence’s credible testimony. (Tr. 144–145, 149.) Downin did not testify,
while Bauman paused before denying any further conversations with Bence about her trip (Tr. 295–296).
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5
Company and its parent organization. Bence expressed concern about her job security because
she had been given a hard time about traveling to London to attend the meeting. National
Express’ president, Sir John Armitt, assured Bence her job was secure, while Dean Finch, the
chief executive officer, apologized for the difficulties she encountered. Bence then complained
about the Company’s working conditions in the United States, including passenger overcrowding 5
and the condition of its bus fleet’s tires and breaks. She spoke for about 10 to 15 minutes.13
After the meeting, Bence was speaking in the lobby with Latrisha Pringle, an employee at
a Company facility in South Carolina facility, when David Duke approached and introduced
himself as the Company’s chief executive officer in the United States. After discussing his 10
history with the Company and explaining that he mistook Pringle for someone else, Duke turned
to Bence and said, in a joking manner, “I know you’re really here with Teamsters.” Bence
laughed and Duke said, “it’s okay, you can tell me, you know, it’s just us . . . You can tell me
that you’re here with Teamsters and Teamsters paid for you.” Bence replied that a shareholder
paid for her trip. Duke repeated the question, but Bence repeated her answer and walked away.1415
Upon returning to work, Bence reported her conversation with Duke to numerous coworkers.
F. Alleged Reduction in Bence’s Hours And Pay
Prior to December 2012, Bence picked up students and dropped them off at three 20
locations—Woodlawn Middle School, West Navarre Intermediate School, and Holley-Navarre
Middle School. In the afternoons, she picked up students at the same schools and dropped them
off at home. Bence’s route averaged approximately 35.24 hours per week.15
In December 2012, Willoughby, sought to alleviate the consistent overtime accruals of 25
another driver, John Dore, by asking Bence to take on an additional bus route from Navarre High
School to Gulf Breeze. Bence agreed and picked up the additional route through the end of the
school year in June 2013. During this period, the additional route added over an hour to her
average work day. Although Bence averaged 39.25 hours worked per week, it resulted in her
working overtime hours during 10 weekly periods, including the final 6 weeks of the 2012–2013 30
school year.16
At the Company’s start-up meeting in August, area manager Jim Bagby and routing
supervisor Dangela Bryant announced drivers’ bus routes for the 2013–2014 school year. The
printed schedules were not yet available. As is typical at the annual start-up meeting, however, 35
the drivers were told that most schedules would remain the same. Bence picked up her schedule

13 Bence’s testimony about her statements during the meeting are undisputed. (Tr. 94–97.)
14 Bence’s credible version of this encounter was corroborated by Pringle. (Tr. 65–69, 75, 97–98,
132–134, 147–148.) Duke did not testify.
15 Given the regularity of Bence’s schedule amounting to over 30 hours per week, weeks when she
worked less than 30 hours were atypical and, thus, were not factored into the averages. (GC Exh. 16, 22.)
16 It is undisputed that Dore was working over 8 hours a day, which resulted in overtime pay (Tr.
117.) and Bence began to accrue similar amounts of overtime pay by covering the latter part of his route
in the afternoons. (GC Exh. 9(e), 16; Tr. 32–38, 117, 348, 364–366.)
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two days later and noticed she was still assigned to the same routes that she covered from
December 2012 to June, including the Navarre to Gulf Breeze route in the afternoon.17
School started the following week. On the first day of school, Willoughby informed
Bence her that her schedule would revert to the one she drove prior to December 2012. As such, 5
Bence would no longer drive the Navarre to Gulf Breeze route in the afternoon. When asked by
Bence the next day why he removed that route from her schedule, Willoughby said he was the
new supervisor and “was going to do things his way.”18 Although he did not mention it at the
time, Willoughby was concerned about Bence’s accrual of overtime pay due to her covering the
additional route.19 The Navarre to Gulf Breeze afternoon route was reassigned to John Dore, but 10
with frequent assistance from several other drivers—none of which included Bence.20
The elimination of the Navarre High School to Gulf Breeze route from Bence’s schedule
had the effect of reducing her average weekly total to 36.74 hours per week for the period of
August to December 2013.2115
G. September 26, 2014—Pier Bar Allegations Involving Jim Bagby
Ashley Hammes and Samantha Rast were drivers in the Navarre facility. Prior to
September 2014, Hammes and Rast discussed the merits of union representation with Bagby. 20
They were clearly conflicted as to whether to support or oppose the Union. Rast, concerned
about union dues, solicitation at home, and potential strike activity, even texted Bagby with such
concerns. During those conversations, rather than refer Rast to the Board, Bagby urged her to
contact the National Right To Work Legal Defense Foundation, an advocacy organization.22
25
By September 2014, however, Hammes and Rast resolved their conundrum and
participated in a Union-coordinated practice strike at Navarre Park. During the practice strike,
which lasted about an hour, about 20 employees chanted union slogans and held signs. The event

17 The Company made periodic changes to route schedules during the school year based on several
factors, including driver performance and changes to student enrollment. (Tr. 358-361; R. Exh. 2–5.)
Indeed, Bence conceded that minor changes to assigned routes occur on a regular basis, but insisted there
was no mention of any assigned route changes at the meeting. (Tr. 100–101, 135–137, 139.) Marcus,
Willoughby and Bagby did not recall whether changes were discussed. (Tr. 155, 318, 351.) However,
Ashley Hammes, another driver called by the General Counsel, testified credibly that bus route changes
were mentioned and it was typical for that to happen at the start-up meeting. As such, I based this finding
on her testimony. (Tr. 221–224.)
18 Bence provided a detailed and credible recollection of these conversations (Tr. 101–102, 136–138,
140.) Willoughby, on the other hand, simply could not recall any such conversations. (Tr. 351–352, 364.)
19 Bence acknowledged that the Company sought to avoid overtime. (Tr. 99–100, 117.)
20 None of the other drivers, including John Lashier, Melvin Green, and Sandra Brummette, accrued
overtime while covering the Navarre to Gulf Breeze route. (R. Exh. 16–17; Tr. 31–43, 129–131, 352–357,
366–367.)
21 Again, the hourly average does not include atypical weeks in which Bence worked less than 30
hours. (GC Exh. 16.)
22 I credit Bagby’s testimony that Rast and Hammes expressed past concerns about union solicitation
and dues. (Tr. 326–332.) Rast and Hammes confirmed those conversations. (Tr. 234-238, 255–257.)
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7
was covered by local television. In addition, a photograph of Rast holding a prounion sign
appeared on social media. Bagby observed the event on television later that day. 23
About a week earlier in September 2014, Hammes and Rast interviewed for a trainer
position with safety supervisor Angie Quinn and supervisor Trish Blair. On September 26, 2014, 5
the day following the practice strike, Hammes was notified by Blair to meet with Bagby in
Willoughby’s office for a second interview regarding the trainer position. After completing her
morning route, Hammes went to Willoughby’s office and sat in the adjacent waiting room. She
sat there for several hours as Bagby went about other business. At some point, Rast stopped by to
inquire about the trainer position, but left. Bagby eventually came out to meet Hammes, but due 10
to time constraints, suggested she meet him after work for drinks at the Pier Bar. Hammes
agreed. Bagby extended a similar invitation to Rast after her afternoon bus run. She also agreed
to meet.24
Bagby was already at the Pier Bar when Hammes arrived with her young nephew. 15
Hammes asked Bagby about a second interview. Bagby informed her that she would not get
another interview since Quinn already selected someone else. He added, however, that Hammes
could become a mentor. Although there would be no pay increase or change in benefits, it would
help Hammes prepare for future trainer positions. Hammes agreed to become a mentor.25
20
At that point, Rast arrived. While Hammes entertained her nephew, Bagby and Rast
talked. Bagby explained that she, too, would not get the trainer position, noting that she was recently
involved in an accident. Bagby advised her to consider a mentor position. Rast also accepted his
suggestion. At some point, they moved to a smoking table. After Bagby and Rast concluded
discussion of the trainer position, the conversation turned to the Union. At some point during the 25
conversation, Bagby responded to a question by Rast about the Union by stating that he “didn’t
understand why people—we would want a union when it’s going to take years and years” before
the Union would consummate a contract with the Company and employees would have to pay
dues regardless of whether they supported or opposed the Union. Rast responded that she was
neither for the Union nor for the Company, but she would listen to both sides.2630

23 It is undisputed that Hammes and Rast participated in the practice strike, and I credited Bagby’s
testimony that he saw coverage of it on local television. (Tr. 208–213, 244–247, 259, 319–321.)
24 Rast and Bagby provided consistent testimony regarding the time of Bagby’s invitation when he
stopped by the facility that afternoon. (246–250, 260–261, 322–325.) Although mistaken about Rast’s
whereabouts that morning, Hammes provided detailed, credible testimony about being instructed by
Quinn, who did not testify, to meet with Bagby. She waited for hours to meet with him and it resulted in
an invite to meet with him later at the Pier Bar. (Tr. 211–216, 219–220, 227–230.)
25 Hammes acknowledged that Quinn informed her at the time of the interview that she had someone
else in mind and Hammes was not yet ready for the trainer position. (Tr. 226-227.)
26 Rast was credible, but conceded that she could not recall portions of the conversation. (Tr. 248–
254.) Hammes seemed to recall that Rast initiated discussion about the Union and stated she did not want
to pay dues if the Union was not involved at Navarre facility. Each took turns watching Hammes’ nephew
and did not hear everything spoken between the other and Bagby. Moreover, Rast’s February 2015 Board
affidavit omitted any mention of Bagby talking about union dues. In addition, Hammes testified that she
did not hear Rast say anything in response to Bagby's union comments, but heard Rast ask Bagby several
questions about the Union and express concerns about having to pay dues (Tr. 216–220, 230–232, 239–
242, 249–250, 252–254, 258–268). In any event, I do not credit Bagby’s denial that he discussed the
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Bagby further stated that employees should be careful who they “danced with in the
park.” Rast asked if he was referring to her attending a recent Music in the Park evening concert.
Bagby replied that he saw Rast during the day. Seeking clarification, Rast asked if he was
referring to the practice strike. Bagby acknowledged that he was, adding that it was hard to miss5
Rast standing on a truck. Hammes responded to Bagby’s comment by professing ignorance
about, and disavowing any desire to be connected with, the Union. Bagby asked if she was
“pulling his leg” because her past actions indicated otherwise.27 The entire conversation lasted
about an hour.28
10
H. Have Your Cake—Just Not Here
On special occasions or holidays, the Company has potluck lunch events in which it
supplies food and employees supplement it with side dishes and desserts. Prior to December 19,
2014, there were no restrictions on the type of food brought into the facility for potluck events.2915
This included sheet cakes brought in by employees from unidentified sources.30
On December 19, 2014, the Company held potluck lunches at its Pace, Milton, and
Navarre facilities. Sheet cakes prepared at local bakeries and inscribed with a mélange of “Merry
Christmas-Happy New Year” and “Teamsters Local 991” on the side of a school bus were 20
delivered by Union representative Clark Cameron to an employee at each facility for
consumption that day.
Cameron delivered the cake for the Pace facility potluck lunch to bus driver Vera
Nowling-Driggers. With the assistance of another employee in the rain, the cake was carried into 25
the facility. After settling in, Nowling-Driggers placed the cake on the food table. Drivers
Victoria Herring and Dawn Lysek were standing at the table with the cake still in the box, but the
top open, when Bagby approached. Bagby asked Nowling-Driggers where the cake came from.
She replied that it was brought to her by a friend from Milton Bakery. Bagby said that it did not
matter and the cake would have to be removed from the facility because it was a Company 30
function. Nowling-Driggers asked if the cake could stay if she smeared the union inscription. He

practice strike or the Union. I do find, however, that it was in response to questions by Hammes and Rast
that he stated that support for the Union would result in them paying dues for “years and years.” Such a
remark was consistent with the Company’s prior letter to employees informing them that the issue was in
litigation and could take a year to resolve. (Tr. 325, 331–332, 342.)
27 I base this finding on the fairly credible and generally consistent testimony of Hammes and Rast.
(Tr. 219-220, 246-250.) Bagby’s terse denial that there was any discussion of the practice strike (“No, that
was already pass”) was not credible given their past discussions about the Union. (Tr. 322–325.)
28 Rast and Hammes had vastly different estimates as to how long they discussed the Union. Rast
testified that the union part of the discussion lasted only a few minutes. (Tr. 258–266.) According to
Hammes, however, the Union was discussed for about 60 minutes. (Tr. 216–220.)
29 It is undisputed that the Company does not have any policies or procedures regarding potluck
events at any of its facilities.
30 Bus driver Donna Snead’s testimony regarding the Company’s past tolerance for cake eating at
potluck events was credible and undisputed. (Tr. 204–205, GC Exh. 4.)
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acquiesced to that option, stating “if you want to.” With that caveat, she smeared the Union’s
name and the cake remained.31
Bagby eventually left and went to the Milton facility’s potluck lunch. That morning,
Cameron also provided Donna Snead, a driver at the Milton facility, with another sheet cake 5
from the same bakery topped with similar references to holiday cheer and the Union. Snead
proceeded to take the cake into the facility and placed it on the food table. She opened the box
and Shay Peek, a supervisor, was getting ready to cut it when Bagby approached and asked
Snead several times where she bought the cake. Snead responded each time that she just brought
it into the facility, but did not purchase it and did not know where it came from. Bagby 10
responded that the cake could have stayed if she purchased it. However, since she did not
purchase it, the cake had to be removed because he and Virginia Sutler, an operations supervisor,
were sponsoring the event and it was not a union function. Bagby started to put the cake under
the table, but Peek retrieved it and put it in the dispatcher's office. Later on, several drivers cut up
the cake and took it home.3215
Bagby also stopped by the Navarre facility’s potluck lunch. When he arrived, he observed yet
another sheet cake on the food table that contained references to the holiday season and the Union.
By then, however, Bagby was done throwing union-inscribed cakes under the proverbial bus and
took no action to remove it.3320
LEGAL ANALYSIS
I. Bauman’s Preelection Interrogation
25
The General Counsel alleges that Bauman unlawfully interrogated and/or polled Bence
and Marcus about the representation election on two occasions in mid-February 2013. The
Company denies that Bauman made the statements which, in any event, were not coercive under
the circumstances.
30
Bauman’s pitch to employees prior to the representation election conveyed the
Company’s standard message their vote was secret, the Company sought to improve
communication with employees, and a union was not necessary to represent their interests.
During the week leading up to the election, Bauman’s approach became more intense when he
asked Bence if he could “count on your support in our vote.” It was a peculiar statement by 35
Bauman since he knew of Bence’s open and notorious advocacy for union representation. He

31 It is not disputed that GC Exh. 2 fairly and accurately depicts the cake without the union inscription
obliterated, while GC Exh. 3 depicts the cake after Nowling-Driggers smeared the union inscription. (Tr.
168, 170–174, 188–190, 192, 194.) Bagby conceded instructing Nowling-Driggers to remove the cake
because it was a Company function. (Tr. 335–336.)
32 The less than credible reason given by Bagby for having the cake removed–it’s unknown source,
even though he knew it came from a local bakery–contradicts a lengthy Company history of unrestricted
employee contributions to potluck events. It also indicates that he observed the writing on the cake when
Snead opened the box. (Tr. 332, 334–335.) As such, I rely on Snead’s credible testimony as to what
Bagby said about the sheet cake at the Milton facility. (Tr. 199–203, 376–378; GC Exhs. 2, 17.)
33 Bagby provided no explanation for his restraint toward the cake on the Navarre facility’s food table
in contrast to his actions at the Pace and Milton facilities. (Tr. 337.)
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could not have been surprised by Bence’s negative response. A few days later, Bauman
expressed his disdain for the prounion paraphernalia on Bence’s work vest by sarcastically
asking her if it was “getting a little heavy?”
Bauman’s advocacy continued on the day of the election when he asked Donna Marcus, a 5
driver working at the Navarre facility due to an injury, “I guess we can count on you for a no
vote, right?” Marcus nodded in the affirmative.
The Board looks at the totality-of-the-circumstances to determine whether under all the
circumstances the questioning at issue would reasonably tend to restrain the affected employee 10
from engaging in protected concerted activity. The standard for assessing the lawfulness of
interrogation is found in Rossmore House, 269 NLRB 1176 (1984), affd. sub nom. Hotel
Employees Union Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985). In conducting such analysis,
it is also appropriate to consider the five factors set forth in Bourne v. NLRB, 332 F.2d 47, 48 (2d
Cir. 1964): (1) whether there is a history of employer hostility and discrimination; (2) the nature 15
of the information sought; (3) level of the supervisor or manager; (4) place and method of the
interrogation; and (5) the truthfulness of the interrogated employee's response. However, relevant
factors “are not to be mechanically applied in each case.” 269 NLRB at 1178 fn. 20.
Applying the Rossmore criteria to the instant case, Bauman, a high-level manager for the 20
Company, communicated the Company’s opposition to union representation in the weeks leading
to the election. The questions suddenly posed to Bence and Marcus occurred in the open and not
behind closed doors. While not directly asking how Bence and Marcus would vote, Bauman’s
impliedly sought to elicit their preference in the upcoming secret election. In Bence’s case,
Bauman conceded an awareness of her strong support for union representation, yet he still 25
persisted in pressing her to reveal her inclination as a voter.
By asking Bauman asked Marcus whether the Company could count on her to vote “no,”
he was not asking how she intended to vote, Marcus was placed in the position of ignoring
Bauman's question or revealing her position regarding the Union. The Board has found that such 30
interrogation regarding union elections is coercive and violates Section 8(a)(1). Shepherd Tissue,
Inc., 327 NLRB 98 (1998). Bauman’s statement also unlawfully polled Marcus because it
suddenly placed her in a position where she reasonably felt pressured to express her voting
preferences. Space Needle, LLC, 362 NLRB No. 11, slip op. at 4 (2015). Under the
circumstances, Bauman unlawfully interrogated and polled an employee in violation of Section 35
8(a)(1) of the Act.
Bauman’s statement to Bence, however, did not reasonably have the same effect of
restraining the latter, an avid union supporter who consistently conveyed her position to Bauman
and other Company managers since 2012. See, e.g., Gardner Engineering, 313 NLRB 755, 755 40
(1994), enfd. as modified on other grounds 115 F.3d 636 (9th Cir. 1997); Blue Flash Express,
109 NLRB 591 (1954).
The General Counsel relies on Cardinal Home Product, Inc., 338 NLRB 1004, 1007
(2003), for the proposition that Bauman’s statement is no less coercive because Bence was 45
openly supportive of the Union. Cardinal is, however, distinguishable. In Cardinal, a supervisor
sought to elicit information from an employee who provided the Board with an affidavit relating
JD–62–15
11
to an unfair labor practice charge. In that case, the supervisor sought information relating to
employee’s Section 7 activity. In this case, although the question touched on Bence’s right to
protect the secrecy of her upcoming vote, the totality of the circumstances reveal that Bauman’s
inquiry was facetious because, by then, their positions were well know known to each other. In
the same way that Bauman’s level in the Company’s supervisory structure was considered, one 5
must also consider Bence’s level of prominence in the union campaign in determining whether
an atmosphere of coercion reasonably existed. Under the circumstances, it did not.
II. Bauman’s Statements Regarding Bence’s London Trip
10
The complaint further alleges that Bauman unlawfully interrogated Bence on two other
occasions after the election. In the first instance, he questioned Bence after she requested leave
on April 29, 2013, as to whether the Union was compensating her for attending the annual
meeting of the Company’s parent organization in London. In the second instance, Bauman
threatened to deny Bence’s leave request on May 1, 2013, if she was being compensated by the 15
Union for the trip.
The Company acknowledges Bence’s statutory right to engage in union activities, but
insists Bauman’s inquiry was justified because he reasonably believed she intended to travel to
London for union-related business. If true, such activity amounted to other employment, which 20
Bauman believed would violate the Company’s policy prohibiting employees from taking leave
to engage in other employment. As such, the Company contends that Bauman’s question was
narrowly focused regarding its concern as to how Bence’s expenses and time were being
compensated. In this regard, it refers to the Board’s recent decision in BFI Newby Island
Recyclery, 362 NLRB No. 186 (2015), which considered compensation as an indicia of 25
employment.
Neither the lawfulness of the Company’s policy against outside employment nor
Bauman’s suspicion as to the purpose of Bence’s leave request is the determining factor. The
focus is on Bauman’s inquiry after Bence submitted a leave request simply stating the purpose as 30
“out of state” travel. The Company had a custom and practice of regularly approving leave
requests, but also expected employees to write the purpose of the leave or Willoughby might ask
for some detail if he had staffing concerns. Here, however, there was no allegation or discernible
fact to justify the questioning by Bauman, a high level manager who actively opposed the union
campaign, as to the purpose of Bence’s leave, much less the funding of her travel “out of state.”35
The purpose of Bauman’s questioning was unlawfully targeted at uncovering the nature of
Bence’s likely protected concerted activity. See Stevens Creek Chrysler Jeep Dodge, Inc., 353
NLRB 1294, 1295 (2009), affd. 357 NLRB No. 57 (2011), rev, denied, enf d. 498 Fed. Appx. 45
(D.C. Cir. 2012) (questioning employees as to who paid for food at a Union meeting constituted
unlawful interrogation). The coercive nature of Bauman's statement was also evident by the clear 40
implication that Bence would violate Company policy if she accepted funding for the trip by the
Union and, thus, subject to disciplinary action.
The Company, citing Johnnie’s Poultry Co., 146 NLRB 770, 774 (1964), enf. denied on
other grounds, 344 F.2d 617 (8th Cir. 1965), contends that an employer may exercise the 45
privilege of interrogating employees if it has a legitimate cause to inquire. See also M-B Co., 290
NLRB 68, 71 (1988) (mere “recitation of a company policy” not a threat). Applicable Board law
JD–62–15
12
suggests, however, that inquiring into employee’s Section 7 activities is not legitimate absent the
existence of allegations of misconduct. Contrary to the Company’s position, the inquiry into
Bence’s Section 7 activity in order to determine whether such activity would be funded by the
Union in violation of Company policy is distinguishable from cases in which interrogation was
deemed justified based on alleged misconduct. Cf. Bridgestone Firestone South Carolina, 350 5
NLRB 526, 528–529 (2007) (employer lawfully questioned employee concerning his alleged
violation of employer’s no-profanity policy while engaging in union-related discussion);
Fresensius USA Mfg., Inc., 362 NLRB No. 130 (2015) (employer lawfully questioned employee
about harassment allegations arising out of concerted activity). Here, there was no allegation that
Bence violated the employer’s outside employment prohibition. 10
Bauman’s threat to deny Bence’s leave request—if she was being compensated for her
out of state travel by the Union—suffers a similar fate. That Bauman’s statements related to
Company policy regarding its policy against other employment or that the leave was
subsequently granted, are of no consequence. The statement stemmed from Bauman’s unlawful 15
interrogation and sought to intimidate Bence from traveling to the National Express meeting in
order to engage in concerted activity. Thus, the statement went beyond merely restating
Company policy. See Arkansas Grain Corp., 166 NLRB 111 (1967) (violation where statement
was not limited merely to the Company break policy).
20
The Company’s coercive remarks regarding Bence’s leave did not cease when it
approved her request. Within the days that followed, both Bauman and Downin, another higher
level supervisor, approached Bence near her bus and asked what she would say at the National
Express meeting. Bence told Downin she would speak about issues and responded in similar
fashion to Bauman (workers issues). Again, these statements also stemmed from the initially 25
unlawful interrogation about the purpose of Bence’s leave request. Under the circumstances, the
Company’s continued questioning of Bence about the purpose of her London trip was clearly
coercive.
Under the circumstances, the aforementioned statements by Bauman and Downin 30
violated Section 8(a)(1) of the Act.
III. The London Interrogation
The complaint alleges that on May 8, 2013, at the National Express meeting in London, 35
the Company’s chief executive officer, David Duke, interrogated Bence regarding the source of
her compensation for the trip. The Company denies the existence of Board jurisdiction over this
allegation because it accrued outside of the United States. Assuming that jurisdiction exists, the
Company also denies that Duke’s question was coercive.
40
A. Jurisdiction
The Company contends that (1) federal legislation does not apply outside of the territorial
jurisdiction of the United States absent a manifested contrary intent, and (2) the Act does not
contain any such manifestation of intent to apply extraterritorially. The General Counsel’s argues 45
that jurisdiction under the Act applies to statements made outside of the United States if: (1) the
relationship is within the United States, (2) the employee performed regular work in the United
JD–62–15
13
States for an American employer, (3) the assignment abroad was temporary and brief, and the
conduct causes unlawful effects in the United States.
The Board has indeed asserted the Act’s jurisdiction beyond the United States’ territorial
boundaries in certain circumstances. In Asplundh, the Board upheld jurisdiction over an unfair 5
labor practices committed in Canada. The case involved American employees regularly
employed by an American employer in the United States, but who were in Canada on a brief and
temporary assignment where they were supervised by an American supervisor. Asplundh Tree
Expert Co., 336 NLRB 1106, 1107 (2001), decision vacated, 365 F.3d 168 (3d Cir. 2004). Thus,
the principal effects of the employer threatening one with layoff and subsequently laying off two 10
of them because they engaged in protected activities were felt in the United States. 336 NLRB at
1107. The Board also clarified that there was no conflict with Canadian laws by asserting
jurisdiction over this dispute, given that it affected only American employees of an American
employer whom were briefly in Canada. Id. The Board concluded that “Americans whose
permanent employment relationships are with American firms in the United States do not lose 15
the protection of the Act while on temporary assignment outside of this country, particularly
where extending the Act's protections would not interfere with the laws of another nation.” Id.
The Third Circuit subsequently disagreed and denied enforcement of the Board’s order, finding
no Congressional intent in the Act sufficient to overcome the presumption against extraterritorial
application of Congressional statutes. Asplundh Tree Expert Co. v. NLRB, 365 F.3d 168, 173 (3d 20
Cir. 2004). Nevertheless, the Board’s decision remains agency precedent. See, e.g., Pathmark
Stores, Inc., 342 NLRB 378 n. 1 (2004); Waco, Inc., 273 NLRB 746, 749 n. 14 (1984); Los
Angeles New Hospital, 244 NLRB 960, 962 n. 4 (1979), enfd. 640 F.2d 1017 (9th Cir. 1981); and
Iowa Beef Packers, 144 NLRB 615, 616 (1963), enfd. in part 331 F.2d 176 (8th Cir. 1964).
25
In California Gas Transport, shortly after the Third Circuit’s Asplundh decision, the
Board also asserted jurisdiction over the actions of an American employer towards its American
workforce for unfair labor practices committed in Mexico. California Gas Transport, Inc., 347
NLRB 1314, 1316 (2006), enfd., 507 F.3d 847 (5th Cir. 2007). Relying on Asplundh, the Board
reasoned that jurisdiction existed because the controversy did not involve Mexican employees or 30
implicate Mexico’s laws or employment conditions, the remedial order only had effect within the
United States, and asserting jurisdiction did not interfere with Mexico’s ability to regulate its
commercial affairs. Id. at 1316–1317. The Board also noted that actions by an American
employer towards its American workforce would escape liability just because the conduct
occurred across an international border. Id. The Fifth Circuit enforced the Board’s order, 35
although it relied on the employer’s actions within the United States alone to justify its remedy
of a bargaining order, without resolving the issue of jurisdiction. 507 F.3d 847, 854 (5th Cir.
2007).
Bence’s complaints at the National Express meeting addressed working conditions 40
involving the Company’s operations within the United States. As such, the dispute involves an
employment relationship between an American citizen and an American corporation. The
employment at issue is performed solely within the United States. Although Bence was not on
duty while briefly in London, she was informed by the Company that she was still subject to her
usual terms and conditions of employment while abroad. England’s ability to regulate its affairs 45
is not affected. However, the alleged unfair labor practice continuing having an effect in the
United States after Bence returned to work and told coworkers about Duke’s attempt to elicit
JD–62–15
14
information from her about the source of her funding for the trip. Under the circumstances,
application of Board precedent in Asplundh and California Gas Transport to the aforementioned
facts clearly establishes Board jurisdiction over this controversy.
B. The Coercive Nature Of Duke’s Inquiry5
Duke approached Bence in the lobby of the hotel on May 9, 2013, after she criticized
Company working conditions in the United States and her difficulties obtaining leave. The
Company insists the encounter was not coercive in nature because Duke’s conversation with
Bence, whose leave was approved, was pleasant and she spoke at the meeting at the invitation of 10
a shareholder who funded her trip. In doing so, however, Bence spoke about employee working
conditions at a location outside the workplace. That the location where she made such statements
lies across the ocean is no more significant than if she made the statement at a restaurant across
the street from her workplace. In either instance, she would be entitled to express her views
about terms and conditions of employment without being interrogated by the Company’s highest 15
level manager in the United States. Duke’s inquiry, like the earlier coercive statements by
Bauman and Downin, were a continuation of the unlawful interrogation regarding Bence’s leave
request and the funding for her trip. Accordingly, Duke’s question was coercive and violated
Section 8(a)(1) of the Act. See Cardinal Home Products, Inc., 338 NLRB at 1007.
20
IV. Reductions in Bence’s Pay and Hours
The complaint alleges that the Company reduced Bence’s hours and pay in August 2014
because she engaged in protected concerted activities earlier that year. The Company does not
dispute that Bence was well known to the Company as an avid union supporter. It asserts, 25
however, Bence did not suffer adverse action, but if so, the route change was unconnected to her
union-related activities.
In determination whether adverse employment action is attributable to unlawful
discrimination, the Board applies the analysis set forth in Wright Line, 251 NLRB 1083 (1980), 30
enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). The Wright Line
framework requires proof that an employee's union or other protected activity was a motivating
factor in the employer's action against the employee. 251 NLRB at 1089. The elements required
to support such a showing are union or protected concerted activity, employer knowledge of that
activity, and union animus on the part of the employer. Amglo Kemlite Laboratories, 360 NLRB35
No. 51, slip op. at 7 (2014); Consolidated Bus Transit, 350 NLRB 1064, 1065 (2007), enfd. 577
F.3d 467 (2d Cir. 2009). Proof of animus and discriminatory motivation may be based on direct
evidence or inferred from circumstantial evidence. Robert Orr/Sysco Food Services, 343 NLRB
1183, 1184 (2004); Purolator Armored, 764 F.2d 1423, 1428–1429 (11th Cir. 1985). Factors
which may support an inference of anti-union motivation include employer hostility toward 40
unionization, other unfair labor practices committed by the employer contemporaneous with the
adverse action, the timing of the adverse action in relation to union activity, the employer's
reliance on pretextual reasons to justify the adverse action, disparate treatment of employees
based on union affiliation, and an employer's deviation from past practice. 764 F.2d at 1429.
45
If the General Counsel makes a prima facie case, the burden shifts to the employer to
show that it would have taken the same adverse action even in the absence of the employee's
JD–62–15
15
protected activity. 251 NLRB at 1089. If the employer shows that it would have taken the action
for legitimate reasons regardless of the protected activity, the General Counsel may rebut that
contention with evidence that the employer's proffered explanation is pretextual, thereby
restoring the inference of unlawful motivation. NLRB v. United Sanitation Serv., 737 F.2d 936,
939 (11th Cir.1984).5
The Company contends there were no meaningful changes in Bence’s route in August
2013 and she continued to service the same three schools she has served since 2011. Moreover,
while Bence’s hours and pay may have been reduced from what they were between December
2012 and June 2013, they were consistent with her historical hours and pay over the past several 10
years. The fact remains, however, that Bence received a new schedule when she took on a
portion of Dore’s route in December 2013 and proceeded to accrue significant overtime pay. The
schedule was preliminarily confirmed at the first staff meeting in August 2013, but was changed
by Willoughby a few days later. As a result of the scheduling change, Bence’s weekly work
diminished by 2.51 hours (39.25 hours reduced to 36.74 hours per week). Although Bence’s 15
schedule reverted to the one she enjoyed for years until December 2012, there is no credible
evidence establishing that her December—June assignment was temporary in nature. As such,
the August 2013 revision to Bence’s schedule constituted adverse action. Cf. Webb v.
International Business Machines Corp., 458 Fed. Appx. 871, 877 (2012) (failure to receive
temporary assignment did not constitute adverse employment action).20
Although Bence suffered adverse action, the weight of the credible evidence strongly
suggests that Willoughby made the scheduling change for legitimate business and operations
reasons. The timing of the change is not suspect; it was announced at the beginning of the new
school year. Moreover, Bence confirmed the Company’s contention that it abhors the accrual of 25
overtime work and pay, which concern was ameliorated when the Company returned that route
to Dore and /or provided route support for Dore by dividing the effort among several other
employees. The legitimacy of the Company’s action is not sufficiently undermined based on the
Company’s commission of several unfair labor practices during the year prior to August 2014,
including several coercive statements made to Bence. See FiveCAP, Inc., 294 F.3d 768, 781 (6th 30
Cir. 2002) (where a legitimate reason exists for adverse action, anti-union animus cannot be
simply inferred from separate acts involving other employees).
Under the circumstances, the General Counsel failed to establish that the adverse action
experienced by Bence when the Company assigned her a new bus route in August 2013 was 35
motivated by antiunion animus and the Section 8(a)(3) and (1) allegation is dismissed.
V. Bagby Statements at the Pier Bar
The complaint alleges that on September 26, 2014, at the Pier Bar in Navarre, Bagby (a) 40
interrogated employees, (b) informed employees it would be futile to select the Union as it would
take years for the Union to come in, (c) created an impression of surveillance, (d) and threatened
employees that they would be required to join the Union and/or pay dues.
The record revealed a history of indecisiveness on the part of Hammes and Rast as to 45
whether to support the Union. They previously spoke with Bagby about the Union, including
dues, and were well aware of his antiunion views. On one particular day in September 2014,
JD–62–15
16
however, they decided to participate in a union-sponsored practice strike at Navarre Park. Bagby
observed them take part in that exercise on local television later that day. The next day, he
invited Hammes and Rast to meet him at a local bar after work to discuss why they were not
selected for trainer positions. Both agreed.
5
Bagby did not initiate discussion about the Union or the payment of union dues. As
indicated from Hammes’ testimony, discussion about the Union and the payment of dues came
up after Bagby discussed the trainer position and his personal background. In fact, Hammes
recalled that it was Rast who brought up the Union. Under the circumstances, the factual context
provided does not support a conclusion that Bagby initiated an unlawful interrogation of 10
Hammes and Rast or uttered an unsolicited threat regarding the Union’s collection of dues during
drawn-out litigation over representation, at the Pier Bar on September 26, 2014.
Regardless of the fact that Bagby did not initiate the discussion about the Union, he did
express other unsolicited views. Three of those crossed the line. In one instance, he opined it 15
would be “years and years” before union representation materialized. That comment, blended
into a conversation by a high-level supervisor about the potential for future promotion,
reasonably suggested to Hammes and Rast that it would be futile to continue supporting the
Union. Libertyville Toyota, 360 NLRB No. 141 (2014), enfd., 801 F.3d 767 (7th Cir. 2015) (implicit
threat of futility to select union).20
In the second instance, Bagby diverted the discussion by implying that he observed Rast
and Hammes participate at the union-sponsored practice strike in Navarre Park. He also
suggested that Rast, standing on top of a vehicle holding a prounion sign during the practice,
should be careful who she was dancing with in Navarre Park. Although the event was on social 25
media and local television, Bagby simply noted that he saw her “during the day.” He did not
clarify, however, that his knowledge derived from television or social media, reasonably leaving
them with the impression that their activities at the park were under surveillance by the
Company. Under the circumstances, Hammes and Rast would have reasonably assumed from
Bagby’s comment that their Section 7 activities were under surveillance in violation of Section 30
8(a)(1). See Woodcrest Health Care Center, 360 NLRB No. 58 (2014), affd. in part, vacated in
part, 784 F.3d 902 (3d Cir. 2015); Golden Stevedoring Co., 335 NLRB 410, 416 (2001); the
employees would reasonably assume from the employer’s statements or conduct that their
organizing activities have been placed under surveillance.” Michigan Roads Maintenance Co.,
344 NLRB 617, 623 (2005) (unlawful interrogation where there was an “obvious connection” 35
between the questioned activity and a contemporaneous unfair labor practice).
Responding to Bagby’s coercive remark about her participation in the practice strike,
Hammes equivocated, telling Bagby she was unsure about her support for the Union. Bagby
responded by asking if Hammes “was pulling his leg” with her shifting allegiances. By 40
questioning Hammes’s veracity after she indicted that she was not sure about her position, Bagby
interrogated her unlawfully in violation of Section 8(a)(1).
VI. The Union Cakes
45
The complaint alleges that on December 19, 2014, Bagby prohibited employees at the
Pace and Milton facilities from eating cake topped with the Union’s name. In addition, he
JD–62–15
17
allegedly promulgated a rule at the Milton facility restricting the type of food that can be brought
to potluck lunches. The Company does not dispute what transpired at the Milton potluck lunch,
but denies the allegations regarding the Pace potluck lunch and, in both cases, insists that this
issue borders on the trivial.
5
The parties agree that the applicable analysis is that which is applied to cases involving
the wearing of union insignia. Both also agree that employees have a Section 7 right to display
union insignia in the workplace, except where there are “special circumstances” justifying
restrictions to the contrary. See Republic Aviation Corp., 324 U.S. 793 (1945). Special
circumstances exist “when their display may jeopardize employee safety, damage machinery or 10
products, exacerbate employee dissension, or unreasonably interfere with a public image that the
employer has established, or when necessary to maintain decorum and discipline among
employees).” Komatsu America Corp., 342 NLRB 649, 650 (2004).
Every year during the holiday season, the Company sponsored a potluck lunch at each of 15
its Santa Rosa County facilities. The Company provided food entrees, which employees
supplemented with homemade and purchased food and desserts. Their culinary contributions
were neither coordinated nor restricted by supervisors or managers in any respect.
On December 19, cakes topped with buses inscribed with union insignia were brought to 20
the Company-sponsored potluck lunches at the Milton, Pace, and Navarre facilities. The Navarre
cake’s presence at that event was uneventful. However, the cakes brought to the Milton and Pace
facilities encountered different fates.
At the Pace facility, Bagby questioned an employee who placed the cakes on the food 25
tables as to its origin. The employee identified the local bakery where it came from, but that
explanation did not satisfy Bagby and he instructed her to remove the cake because it was a
Company function. After she suggested smearing the icing on the school bus figurine so that the
union insignia was no longer decipherable, Bagby relented (“if you want to”) and the cake
remained. Bagby made a similar inquiry about the union cake at the Milton facility. After an 30
employee explained that she did not know where it came from, Bagby directed it be removed and
added the additional impediment that it was a Company event.
Bagby offered two rationales for requiring employees to alter the cake or remove them
altogether: employees failed to identify the origin of the cakes and/or it was a Company-35
sponsored event. The Company explains the origination factor as a common sense consideration
relating to the health implications of a cake brought by an employee to a traditional potluck
event. Common sense aside, there is no evidence that supervisors and managers ever concerned
themselves in the past over the origin of food brought to potluck events. As such, Bagby’s
actions were not justified based on past practice and were obviously aimed at eliminating the 40
promotional value that the insignia atop the cake represented to the Union. In the absence of
special circumstances, it is clear that Bagby spontaneously and unlawfully created a new rule for
the obvious purpose of stifling Section 7 activity in violation of Section 8(a)(1). See Southern
Monterey County Hospital, 348 NLRB 327, 346 (2006) (employer's ban on wearing union
insignia violated Section 8(a)(1) where it was not limited to patient care areas); Lutheran 45
Heritage Village-Livonia, 343 NLRB 646, 647 (2004) (violation where rule was promulgated in
JD–62–15
18
response to union activity, would be reasonably construed as prohibiting Section 7 activity or
was applied to restrict Section 7 rights).
CONCLUSIONS OF LAW
5
1. The Company violated Section 8(a)(1) of the Act on February 22, 2013, when
supervisor Robert Bauman interrogated and polled employee Donna Marcus as to her voting
preference in the representation election held that same day.
2. The Company violated Section 8(a)(1) on April 29, 2013, when Bauman interrogated10
employee Diane Bence as to whether the Union would compensate her for attending a meeting of
the Company’s parent organization in London, England during her requested leave, and again on
May 1, 2013, by threatening to deny her leave request if that was the case.
3. The Company violated Section 8(a)(1) in May 2013 when Bauman and another 15
supervisor, Bob Downin interrogated Bence about what she intended to say at the upcoming
meeting of the Company’s parent organization in London, England.
4. The Company violated Section 8(a)(1) on May 9, 2013, when its chief executive officer,
David Duke, interrogated Bence in London, immediately after she complained at the parent 20
organization’s about Company working conditions, as to whether the Union paid for her trip.
5. The Company violated Section 8(a)(1) on September 26, 2014, when supervisor James
Bagby told employees Samantha Rast and Ashley Hammes that it is futile to choose the Union
for representation because it will take years for the Union to effectuate its representation, created 25
the impression that Rast's union activities were under surveillance by telling her to watch who
she dances with in Navarre Park, and interrogated Hammes about her union sympathies.
6. The Company violated Section 8(a)(1) on December 19, 2014, when Bagby
spontaneously promulgated a rule prohibiting employees Vera Nowling-Driggers at the Pace 30
facility and Donna Snead at the Milton facility from serving cakes because they were adorned
with union insignia and/or could not identify the source of the cake.
7. The aforementioned unfair labor practices affected commerce within the meaning of
Section 2(6) and (7) of the Act.35
8. All other complaint allegations not specifically addressed above are dismissed.
REMEDY
40
Having found that the Company has engaged in certain unfair labor practices, I shall
order it to cease and desist therefrom and to take certain affirmative action designed to effectuate
the policies of the Act.
JD–62–15
19
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended34
ORDER
5
The Company, Durham School Services, L.P., Santa Rosa County, Florida, its officers,
agent, successors, and assigns, shall
1. Cease and desist from
10
(a) Coercively interrogating and polling any employee about union support or union
activities.
(b) Threatening to deny leave time to any employee who seeks to engage in union or
other protected concerted activities.15
(c) Telling employees that it is futile to choose the Union for representation because it
will take years for the Union to effectuate its representation
(d) Creating the impression that employee union activities are or were under 20
surveillance.
(e) Promulgating a rule prohibiting employees from serving cakes at Company events
because they display union insignia.
25
(f) 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.
30
(a) Within 14 days after service by the Region, post at its Santa Rosa County facilities in
Pace, Milton and Navarre, Florida, copies of the attached notice marked “Appendix.”35 Copies of
the notice, on forms provided by the Regional Director for Region 15, after being signed by the
Company’s authorized representative, shall be posted by the Company and maintained for 60
consecutive days in conspicuous places including all places where notices to employees are 35
customarily posted. In addition to physical posting of paper notices, the notices shall be
distributed electronically, such as by email, posting on an intranet or an internet site, and/or other
electronic means, if the Company customarily communicates with its employees by such means.
Reasonable steps shall be taken by the Company to ensure that the notices are not altered,

34 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.
35 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–62–15
20
defaced, or covered by any other material. In the event that, during the pendency of these
proceedings, the Company has gone out of business or closed the facility involved in these
proceedings, the Company shall duplicate and mail, at its own expense, a copy of the notice to all
current employees and former employees employed by the Company at any time since February
2013.5
(b) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Company has taken to comply.
10
Dated, Washington, D.C. October 30, 2015
15
______________________________
Michael A. Rosas
Administrative Law Judge
JD–62–15
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 coercively interrogate and poll any employee about union support or union
activities.
WE WILL NOT threaten to deny leave requests to any employee who seeks to engage in union
or other protected concerted activities.
WE WILL NOT tell employees that it is futile to choose the Union for representation because it
will take years for the Union to effectuate its representation
WE WILL NOT create the impression that employees union activities were under surveillance.
WE WILL NOT promulgate a rule prohibiting employees from displaying union insignia on
cakes served at potluck events in the workplace.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
DURHAM SCHOOL SERVICES, L.P.
(Employer)
Dated By
(Representative) (Title)
JD–62–15
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.
600 South Maestri Place, 7th Floor, New Orleans, LA 70130-3408
(504) 589-6361, Hours: 8 a.m. to 4:30 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/15-CA-106217 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, (504) 589-6389.