DURHAM SCHOOL SERVICES, L.P.

National Labor Relations Board - Board Decisions

Feb 19, 2016

363 NLRB No. 129 (N.L.R.B. 2016)

363 NLRB No. 129
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Durham School Services, L.P. and Teamsters Local
853. Case 32–CA–165556
February 19, 2016
DECISION AND ORDER
BY MEMBERS MISCIMARRA, HIROZAWA,
AND MCFERRAN
This is a refusal-to-bargain case in which the Re-
spondent is contesting the Union’s certification as bar-
gaining representative in the underlying representation
proceeding. Pursuant to a charge filed by Teamsters Lo-
cal 853 (the Union), the General Counsel issued the
complaint on December 21, 2015, alleging that Durham
School Services, L.P. (the Respondent) has violated Sec-
tion 8(a)(5) and (1) of the Act by failing and refusing to
recognize and bargain with the Union following the Un-
ion’s certification in Case 32–RC–150090. (Official
notice is taken of the record in the representation pro-
ceeding as defined in the Board’s Rules and Regulations,
Secs. 102.68 and 102.69(d). Frontier Hotel, 265 NLRB
343 (1982).) The Respondent filed an answer admitting
in part and denying in part the allegations of the com-
plaint, and asserting affirmative defenses.
On January 11, 2016, the General Counsel filed a Mo-
tion for Summary Judgment. On January 13, 2016, the
Board issued an order transferring the proceeding to the
Board and a Notice to Show Cause why the motion
should not be granted. The Respondent filed a motion in
opposition to the motion for summary judgment.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Summary Judgment
The Respondent admits its refusal to bargain, but contests
the validity of the Union’s certification based on its objec-
tions to the election in the representation proceeding, which
alleged that the Union and its agents or representatives en-
gaged in objectionable conduct and that the imposition and
implementation of the Board’s revised representation case
procedures, 79 Fed. Reg. 74308 (Dec. 15, 2014), violated
the Respondent’s procedural due process rights and other-
wise prejudiced the Respondent and frustrated employees’
Section 7 rights.1

1 In denying the Employer’s request for review of the Regional Di-
rector’s Decision and Certification of Representative on the basis that it
raised no substantial issues warranting review, the Board stated that it
agreed with the Regional Director that the Employer untimely raised its
argument challenging the validity of the Board’s revised representation
All representation issues raised by the Respondent
were or could have been litigated in the prior representa-
tion proceeding. The Respondent does not offer to ad-
duce at a hearing any newly discovered or previously
unavailable evidence, nor does it allege any special cir-
cumstances that would require the Board to reexamine
the decision made in the representation proceeding. We
therefore find that the Respondent has not raised any
representation issue that is properly litigable in this un-
fair labor practice proceeding. See Pittsburgh Plate
Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accord-
ingly, we grant the Motion for Summary Judgment.2
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a Delaware cor-
poration with offices and places of business in Hayward,
California, and Livermore, California (the facilities), has
been engaged in the business of school bus transportation
services.
In conducting its operations during the 12-month peri-
od ending November 30, 2015, the Respondent derived
gross revenues in excess of $250,000 and purchased and
received at its facilities products, goods, and materials
valued in excess of $5000 directly from points outside
the State of California.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act, and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the representation election held on May 8,
2015, the Union was certified on July 29, 2015, as the
exclusive collective-bargaining representative of the em-
ployees in the following appropriate unit:

case procedures. Durham School Services, L.P., Case 32–RC–150090,
unpublished Order issued November 4, 2015, at 1 fn. 1.
Member Miscimarra expressed his disagreement with these proce-
dures in his dissent to the Final Rule. 79 Fed.Reg. 74308, at 77430–
74460 (Dec. 15, 2014) (dissenting views of Members Miscimarra and
Johnson). He would have granted review in the underlying representa-
tion proceeding on the basis that it raised substantial questions regard-
ing the effect and application of the Board’s Final Rule. See Pulau
Corp., 363 NLRB No. 8 (2015) (Member Miscimarra, dissenting).
While Member Miscimarra remains of that view, he agrees that the
Respondent has not presented any new matters that are properly litiga-
ble in this unfair labor practice case. See Pittsburgh Plate Glass Co. v.
NLRB, supra. In light of this, Member Miscimarra agrees with the
decision to grant the Motion for Summary Judgment.
2 The Respondent’s motion in opposition to the Motion for Summary
Judgment is therefore denied.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
All full-time and regular part-time routers, payroll de-
partment employees, administrative employees, and
dispatchers employed by the Employer at its facilities
located at 27577 Industrial Boulevard, Suite A, Hay-
ward, California and 72 Rickenbacker Circle, Suite A,
Livermore, California; excluding employees represent-
ed by a labor organization, professional employees,
confidential employees, managers, guards, and supervi-
sors as defined by the Act.
The Union continues to be the exclusive collective-
bargaining representative of the unit employees under
Section 9(a) of the Act.
B. Refusal to Bargain
About November 5, 2015, the Union, by letter, re-
quested that the Respondent recognize and bargain with
the Union as the exclusive collective-bargaining repre-
sentative of the unit with respect to rates of pay, wages,
hours of employment, and other terms and conditions of
employment.
About November 24, 2015, the Respondent, by letter,
declined to recognize and bargain with the Union as the
exclusive collective-bargaining representative of the unit
and since that time the Respondent has failed and refused
to recognize and bargain with the Union as the exclusive
collective-bargaining representative of the unit.
We find that this failure and refusal constitutes an un-
lawful failure and refusal to recognize and bargain with
the Union in violation of Section 8(a)(5) and (1) of the
Act.
CONCLUSION OF LAW
By failing and refusing since about November 24,
2015, to recognize and bargain with the Union as the
exclusive collective-bargaining representative of the em-
ployees in the appropriate unit, the Respondent has en-
gaged in unfair labor practices affecting commerce with-
in the meaning of Section 8(a)(5) and (1) and Section
2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has violated Section
8(a)(5) and (1) of the Act, we shall order it to cease and
desist, to bargain on request with the Union and, if an
understanding is reached, to embody the understanding
in a signed agreement.
To ensure that the employees are accorded the services
of their selected bargaining agent for the period provided
by law, we shall construe the initial period of the certifi-
cation as beginning the date the Respondent begins to
bargain in good faith with the Union. Mar-Jac Poultry
Co., 136 NLRB 785 (1962); accord Burnett Construction
Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57
(10th Cir. 1965); Lamar Hotel, 140 NLRB 226, 229
(1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied
379 U.S. 817 (1964).
ORDER
The National Labor Relations Board orders that the
Respondent, Durham School Services, L.P., Hayward
and Livermore, California, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with
Teamsters Local 853 as the exclusive collective-
bargaining representative of the employees in the bar-
gaining unit.
(b) In any like or related manner interfering with, re-
straining, 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.
(a) On request, bargain with the Union as the exclu-
sive collective-bargaining representative of the employ-
ees in the following appropriate unit on terms and condi-
tions of employment and, if an understanding is reached,
embody the understanding in a signed agreement:
All full-time and regular part-time routers, payroll de-
partment employees, administrative employees, and
dispatchers employed by the Employer at its facilities
located at 27577 Industrial Boulevard, Suite A, Hay-
ward, California and 72 Rickenbacker Circle, Suite A,
Livermore, California; excluding employees represent-
ed by a labor organization, professional employees,
confidential employees, managers, guards, and supervi-
sors as defined by the Act.
(b) Within 14 days after service by the Region, post at
its facilities in Hayward and Livermore, California, cop-
ies of the attached notice marked “Appendix.”3 Copies
of the notice, on forms provided by the Regional Director
for Region 32, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent and maintained for 60 consecutive days in con-
spicuous places, including all places where notices to
employees are customarily posted. In addition to physi-
cal posting of paper notices, notices shall be distributed
electronically, such as by email, posting on an intranet or
an internet site, and/or other electronic means, if the Re-
spondent customarily communicates with its employees

3 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DURHAM SCHOOL SERVICE, L.P. 3
by such means. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. If the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since November 24, 2015.
(c) Within 21 days after service by the Region, file
with the Regional Director for Region 32 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. February 19, 2016
______________________________________
Philip A. Miscimarra, Member
______________________________________
Kent Y. Hirozawa, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
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 vio-
lated 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 bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT fail and refuse to recognize and bargain
with Teamsters Local 853 as the exclusive collective-
bargaining representative of the employees in the bar-
gaining unit.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, on request, bargain with the Union and put
in writing and sign any agreement reached on terms and
conditions of employment for our employees in the fol-
lowing bargaining unit:
All full-time and regular part-time routers, payroll de-
partment employees, administrative employees, and
dispatchers employed by us at our facilities located at
27577 Industrial Boulevard, Suite A, Hayward, Cali-
fornia and 72 Rickenbacker Circle, Suite A, Livermore,
California; excluding employees represented by a labor
organization, professional employees, confidential em-
ployees, managers, guards, and supervisors as defined
by the Act.
DURHAM SCHOOL SERVICES, L.P.
The Board’s decision can be found at
www.nlrb.gov/case/32–CA–165556 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Re-
lations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.