Durham School Services, L.P.

National Labor Relations Board - Board Decisions

Aug 26, 2016

364 NLRB No. 107 (N.L.R.B. 2016)

364 NLRB No. 107
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, Chauf-
feurs, Warehousemen and Helpers Local Union
No. 991. Cases 15–CA–106217, 15–CA–112948,
15–CA–145094, and 15–CA–145797
August 26, 2016
DECISION AND ORDER
BY MEMBERS MISCIMARRA, HIROZAWA, AND
MCFERRAN
On October 30, 2015, Administrative Law Judge Mi-
chael A. Rosas issued the attached decision. The Re-
spondent filed exceptions, a supporting brief, a reply, and
an answering brief. The General Counsel filed cross-
exceptions, a supporting brief, and an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings,1 findings,2 and conclusions
and to adopt the recommended Order as modified.
The Respondent provides school bus transportation
services for the Santa Rosa County, Florida school dis-
trict. It operates facilities in three towns—Navarre, Mil-
ton, and Pace—from which drivers transport students to
and from school. This case concerns a series of incidents
that occurred between February 2013 and December
2014, around the time of the Union’s representation elec-
tion campaign, and continued sporadically for the follow-
ing two years, and involve several of the Respondent’s
managers and employees.
We agree with the judge, for the reason stated in his
decision and the additional reasons set forth below, that

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 We shall modify the judge’s recommended Order and substitute a
new notice to conform to the judge’s findings and to the Board’s stand-
ard remedial language.
In affirming the judge’s findings, we find it unnecessary to pass on
whether the Respondent violated Sec. 8(a)(1) by interrogating employ-
ee Diane Bence regarding what she would say at an upcoming meeting
of the Respondent’s parent organization in London, England; by inter-
rogating Bence again in London; and by interrogating employee Ashley
Hammes about her union sympathies, as any such findings would not
affect the remedy.
the Respondent violated Section 8(a)(1) by interrogating
employee Diane Bence about whether the Union was
compensating her for attending a meeting of the Re-
spondent’s parent organization in London, England;
threatening to deny Bence’s leave request if the Union
was compensating her for attending that meeting; sug-
gesting to employees Samantha Rast and Ashley Ham-
mes that it was futile for employees to choose the Union
for representation because it would take years for the
Union to enter into a collective-bargaining agreement;
and creating the impression that employees’ union activi-
ty were under surveillance.
A. Diane Bence
Driver Diane Bence openly supported the Union; she
wore prounion shirts and pins prior to, during, and after
the election. She also publicly announced her intention
to bring the Union into the Respondent’s facilities.
During spring break in March 2013, Bence traveled to
London, England to participate in a union protest at the
headquarters of the Respondent’s parent organization,
National Express. Following that trip, Bence decided to
return to London to attend National Express’ May 2013
shareholder meeting, where she planned to complain
about working conditions at the Respondent’s facilities.
To attend that meeting, Bence needed to ask for and be
granted leave. The Respondent routinely approved driv-
ers’ leave requests.3 On April 23, 2013,4 Bence submit-
ted a leave request stating that she would be “out of
state” from May 6 to 10. The Respondent’s past practice
was generally to find “out of state” as sufficient justifica-
tion for requesting leave. On April 29, Bence asked her
supervisor, Operations Supervisor John Willoughby,
about the status of her leave request. Neither Willough-
by nor his supervisor, Area Manager Bob Downin, had
an answer. Downin contacted Region Manager Robert
Bauman, who spoke with Bence about her request.
Bauman asked Bence about the purpose of the trip,5
whether she was being compensated for the trip, and who
was paying her expenses. He reminded her of the Re-
spondent’s policy against outside employment while on
leave and told her that the rule meant that she could not
take leave if the Union would be compensating her for

3 The Respondent expected employees to write the purpose of the
leave. The Respondent’s policy states: “[T]he Company may grant
leave for personal reason, but never for taking employment elsewhere
or going into business for oneself. All personal leaves must be request-
ed in writing with an explanation of why the leave is needed.”
4 All dates are in 2013 unless otherwise noted.
5 This was unusual as, prior to April 2013, the Respondent did not
typically inquire into the purpose of requested leave for out-of-state or
other travel.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
the trip. Bence replied that one of the Respondent’s
“pension [holders]” asked her to attend, adding that she
would call the pension holder to see if she would be
compensated.
Bence provided Bauman with additional answers to his
questions on May 1, when she met with Bauman and
Downin at one of the Respondent’s facilities. The two
managers asked Bence whether she was being compen-
sated; Bence acknowledged that she would receive a
lump sum. Bauman reiterated the Respondent’s policy
and stated that the Respondent would approve the request
only if the Union was not compensating her. Bence re-
plied that a shareholder was compensating her. The Re-
spondent later granted Bence’s leave request.
We agree with the judge that Bauman’s initial inquir-
ies into whether Bence was receiving compensation were
coercive. Bence’s leave request to attend National Ex-
press’ shareholder meeting came little more than a month
after she had taken leave to participate in a union protest
at National Express’ headquarters, and the Respondent
knew that May 6 to 10, the period for which Bence re-
quested leave, was when National Express would be
holding its annual shareholder meeting. As a result, it
would have been reasonable for an employee in Bence’s
position to assume that the Respondent knew, or at least
suspected, that her “out of state” travel was another un-
ion-related trip to London involving the Respondent’s
corporate parent. Such an assumption would have been
reinforced when, contrary to the Respondent’s usual pro-
cedure, instead of an inquiry from Willoughby, or even
his supervisor, it was Bauman, a high-level manager who
actively opposed the union campaign, who inquired into
the purpose of Bence’s leave and the funding for her “out
of state” travel. In those circumstances, we find that a
reasonable employee would tend to be chilled in the ex-
ercise of her Section 7 right to support the union by
Bauman’s questioning. Accordingly, we adopt the
judge’s finding that the Respondent violated Section
8(a)(1) by coercively interrogating Bence. See North
Hills Office Services, 344 NLRB 1083, 1094 (2005) (ap-
plying the totality of the circumstances test adopted by
Rossmore House, 269 NLRB 1176 (1984), affd. sub
nom. Hotel Employees Local II v. NLRB, 760 F.2d 1006
(9th Cir. 1985), to find that the questioning of employees
who attended a union meeting at the commencement of
an organizing campaign would reasonably tend to coerce
them); Stoody Co., 320 NLRB 18, 18 (1995) (interroga-
tor’s position as a high-level supervisor supports a con-
clusion that the questioning was coercive).
We also agree with the judge that Bauman violated
Section 8(a)(1) by threatening to deny Bence’s leave
request. In determining whether an employer’s conduct
amounts to interference, restraint, or coercion within the
meaning of Section 8(a)(1), the test is not the employer’s
intent, but whether the conduct reasonably tends to inter-
fere with the free exercise of the rights guaranteed em-
ployees by the Act. Idaho Pacific Steel Warehouse, 227
NLRB 326, 331 (1976). We find that standard satisfied
here.
Contrary to the Respondent’s usual procedure, under
which an employee’s immediate supervisor handled
leave requests, the Respondent assigned this matter to
Bauman, a high-level manager, who repeatedly ques-
tioned Bence about who was paying for her trip and “re-
minded” her that the rule against outside employment
would cover being compensated for the trip by the Un-
ion. The May 1 “reminder” at issue here came after
Bauman had already “reminded” Bence about the policy,
and after Bence provided Bauman with answers to his
questions.6
We reject the Respondent’s argument, endorsed by the
dissent, that Bauman merely recited a lawful company
policy. While the statement was a correct recitation of
the Respondent’s policy, the context of the conversation
was coercive—Bence was requesting leave to engage in
protected activity, and was at the Respondent’s mercy as
to whether she could engage in that activity. According-
ly, we find Bauman’s statement that the Respondent
would approve Bence’s request only if the Union was not
compensating her, made after she had advised him about
how her trip was being funded, was a violation of Sec-
tion 8(a)(1) of the Act.
B. Samantha Rast and Ashley Hammes
Employees Samantha Rast and Ashley Hammes were
uncertain about whether to support or oppose the Union.
On several occasions, they expressed their concerns to
Area Manager Jim Bagby. In September 2014, Rast and
Hammes participated in a union-coordinated “practice
strike” at a park. Participants chanted union slogans and
held signs. Local media covered the event, and Bagby
observed the event on television later that day. Addi-
tionally, a photograph of Rast holding a prounion sign
appeared on social media.
Approximately a week before the practice strike, the
Respondent had interviewed Rast and Hammes for a
trainer position. The day after the practice strike, Ham-

6 The dissent notes that the General Counsel does not allege that the
Respondent’s leave policy is unlawful, nor that it was unlawful for the
Respondent to apply the leave policy to Bence’s situation. But the
lawfulness of the Respondent’s leave policy is not before us. What is
before us is Bauman’s treatment of Bence’s leave request and his ques-
tioning her about a tie between the leave request and the Union.
DURHAM SCHOOL SERVICES, L.P. 3
mes received a notice to meet with Bagby. That evening,
Rast and Hammes met with Bagby at a local bar. Bagby
told them that they would not get the trainer position and
advised them to consider a mentor position, which would
not result in a pay increase or change in benefits, but
would help prepare them for the trainer position.
Eventually, their discussion shifted to the Union.
Bagby stated 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 come in, and employees
would have to pay dues regardless of whether they sup-
ported or opposed the Union.7 Bagby added that Rast
and Hammes should be careful who they “danced with in
the park.” When Rast asked if he was referring to an
evening concert in the park, Bagby clarified that he had
seen her during the day. In acknowledging that these
statements referred to the practice strike, Bagby stated
that it was hard to miss Rast standing on a truck.
1. Threat of Futility
We agree with the judge that the Respondent, through
Bagby, violated Section 8(a)(1) by threatening that un-
ionization would be futile. In doing so, we examine
Bagby’s statement in context: Bagby, a high-level man-
ager whose opposition to the Union was well known,
made the statement during a conversation in which he
also discussed Rast and Hammes’ advancement pro-
spects with the Respondent and, as discussed below,
gave the impression that their activities were under sur-
veillance.8 See Valerie Manor, Inc., 351 NLRB 1306,
1319 (2007) (finding that, coupled with unlawful threats,
a slide by the Respondent stating “[h]ow long does the
bargaining process take? Weeks? Months? Years? How
long could you wait?” constituted a threat of futility and
violated Section 8(a)(1)); Airtex, 308 NLRB 1135 fn. 2
(1995) (finding that the Respondent issued a threat of
futility by stating that it did not have to sign anything, it
simply had to negotiate with the union; the Board noted
that the statement did not stand alone, but occurred dur-

7 The judge dismissed an allegation that Bagby threatened employ-
ees by stating that the Union would collect dues during the litigation of
the representation case. We affirm the dismissal, but we do not rely, as
the judge did, on the fact that an employee initiated the conversation
pertaining to the Union. Rather, under the totality of the circumstances,
we find that the statement, while incorrect, was not coercive.
8 The dissent references a “lawful” letter the Respondent apparently
circulated to employees, which he views as similar to Bagby’s state-
ment here. The dissent’s reliance on the letter is misplaced for two
reasons. First, there has been no finding that the letter was lawful; as
our colleague concedes, it was not alleged to be unlawful and therefore
the question was not litigated. Second, the Respondent failed to intro-
duce the letter into evidence at the hearing, and thus it never became a
part of the record.
ing a conversation in which the Respondent, among other
things, threatened an employee with job loss; offered him
a supervisory position; and stated that “things could be
better.”). Accordingly, we agree with the judge that
Bagby’s statement reasonably suggested to Rast and
Hammes that it would be futile to continue supporting
the Union.
2. Impression of surveillance
In determining whether an employer’s statement has
created an unlawful impression of surveillance, the test is
“whether the employees would reasonably assume from
the statement that their union activities had been placed
under surveillance.” Bridgestone Firestone South Caro-
lina, 350 NLRB 526, 527 (2007). The standard is an
objective one, based on the perspective of a reasonable
employee. Id.
We agree with the judge that Bagby’s statements cre-
ated the impression of surveillance. Among other things,
Bagby stated that he saw Rast during the day, standing
on a truck; Rast and Hammes should be careful who they
danced with; and it was hard to miss Rast dancing on a
truck. Bagby’s statements, on their face, reasonably
suggested to Rast and Hammes that the Respondent was
monitoring the degree and extent of their union activity.
Bagby’s direct personal reference to Rast’s union ac-
tivity would reasonably lead Rast to believe that her pro-
tected activity was under surveillance. The dissent main-
tains that Rast “would have understood” that Bagby had
observed her on television or social media even though
Bagby did not make this clear. However, we agree with
the judge that, without any clarification as to how Bagby
learned about her union activity, Rast could just as easily
suppose that Bagby learned about it through unlawful
means, especially since Bagby stated that he saw her
“during the day.” Moreover, the issue here is not how
Bagby acquired his knowledge, but whether Rast “would
reasonably assume” from Bagby’s statements that her
union activities had been placed under surveillance. See
U.S. Coachworks, Inc., 334 NLRB 955, 958 (2001) (cit-
ing Flexsteel Industries, 311 NLRB 257, 257 (1993)).
Based on the totality of the circumstances, we find that
she would. See Woodcrest Health Care Center, 360
NLRB No. 58, slip op. 2–3 (2014) (by advising an em-
ployee to “watch his back, be careful,” “tone it down,”
and “keep it under wraps,” the Respondent created the
impression that the employee’s union activities were
under surveillance), enfd in rel. part 800 River Road Op-
erating Co. LLC v. NLRB, 784 F.3d 902, 916–918 (7th
Cir. 2015). Accordingly, we find that the Respondent,
through Bagby, created the impression of surveillance in
violation of Section 8(a)(1).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Durham
School Services, L.P., Santa Rosa County, Florida, its
agents, successors, and assigns shall take the action set
forth in the Order as modified.
1. Insert the following as paragraph 2(a) and reletter
the subsequent paragraphs.
“a. Rescind the orally promulgated rule prohibiting
employees from displaying union insignia on cakes
served at potluck events in the workplace.”
2. Substitute the attached notice for that of the admin-
istrative law judge.
Dated, Washington, D.C. August 26, 2016
______________________________________
Kent Y. Hirozawa, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MISCIMARRA, dissenting in part.
I part ways with my colleagues on three issues in this
case. For the reasons explained below, I believe that the
Respondent did not violate Section 8(a)(1) of the Nation-
al Labor Relations Act (NLRA or Act) when it (1) re-
minded an employee of its policy against granting leave
for employees to engage in outside employment; (2) ac-
curately stated, under the circumstances, that it would
take “years and years” before the Union and the Re-
spondent would consummate a contract; and (3) referred
to an employee’s highly visible and well-publicized par-
ticipation in union activities. Accordingly, I would dis-
miss these complaint allegations.
1. Reminder about the Respondent’s leave policy
The Respondent maintains a policy against granting
employees leave to engage in outside employment. On
April 23, 2013,1 employee Diane Bence submitted a
leave request, which stated that she would be “out of
state” from May 6 to 10. The Respondent believed it
was likely that Bence was requesting leave to attend its
parent organization’s shareholders meeting in London,

1 All subsequent dates are in 2013 unless otherwise indicated.
England, and that Bence, an active supporter of the
Charging Party Union, intended to speak at that meeting
on the Union’s behalf. On April 29, the Respondent
asked Bence about the purpose of her trip, if she was
being compensated, and who was paying her expenses.2
The Respondent advised Bence that if the Union com-
pensated her, it would be against company policy to
grant her leave request. Bence said that she did not know
whether she would receive compensation, but she would
inquire further. On May 1, the Respondent again asked
Bence whether she would receive compensation. Bence
replied that she would receive a “lump-sum payment.”
The Respondent reminded Bence that pursuant to its pol-
icy, it would approve her leave request only if the Union
did not compensate her.
Contrary to my colleagues, I would not find that the
Respondent’s May 1 reminder to Bence constituted an
unlawful threat to dissuade Bence from speaking at the
shareholders meeting. The General Counsel does not
allege that the Respondent’s leave policy is unlawful, nor
does he allege that it was unlawful for the Respondent to
apply that policy to Bence’s situation. No party asserts
that it was unreasonable for the Respondent to suspect
that Bence intended to speak on the Union’s behalf at the
meeting and that the Union might compensate her for
doing so. On April 29, when the Respondent attempted
to determine whether its suspicions were correct and re-
minded Bence that company policy precluded granting
her leave request if she were going to be compensated,
Bence said that she did not know whether she would be
paid but would inquire further. The General Counsel
does not allege that the Respondent’s April 29 reminder
to Bence of its leave policy—which was virtually identi-
cal to the disputed May 1 reminder—was unlawful. On
May 1, the uncertainty surrounding Bence’s trip re-
mained. Thus, Bence was asked again whether she
would be compensated. She replied that she would re-
ceive a “lump-sum payment.” Given these facts, it was
perfectly reasonable for the Respondent to again remind

2 I join my colleagues in finding that the Respondent violated Sec.
8(a)(1) of the Act by coercively interrogating and polling employee
Donna Marcus regarding her voting preference in a February 2013
representation election. I find it unnecessary to pass on my colleagues’
finding that the questions posed to Bence on April 29 constituted coer-
cive interrogation in violation of Sec. 8(a)(1), since any additional
coercive interrogation finding would be merely cumulative, i.e., it
would not affect the remedy. On the same basis, I join my colleagues
in finding it unnecessary to pass on the following additional, cumula-
tive allegations: (i) whether the Respondent coercively interrogated
Bence regarding what she would say at the shareholders meeting in
London; (ii) whether the Respondent coercively interrogated Bence in
London; and (iii) whether the Respondent coercively interrogated em-
ployee Ashley Hammes about her union sympathies.
DURHAM SCHOOL SERVICES, L.P. 5
Bence of its lawful policy against granting leave for out-
side employment. This statement was not a threat, any
more than it is a threat to remind any employee of a law-
ful workplace rule or policy. I would reverse the judge’s
violation finding.
2. Statement about the status of contract negotiations
I also disagree with my colleagues’ finding that man-
ager Jim Bagby unlawfully threatened that it would be
futile to support the Union when he told employees Sa-
mantha Rast and Ashley Hammes that it would be “years
and years” before the Respondent and Union would con-
summate a contract. Bagby made this statement in Sep-
tember 2014—19 months after the February 2013 elec-
tion. At the time, litigation concerning the election was
still ongoing, and that litigation would continue until
May 2016.3 Rast and Hammes likely were aware that the
Respondent was challenging the validity of the election.
One month earlier, in August 2014, the Respondent sent
employees a letter referencing this litigation and explain-
ing that it would take “many months or a year or some-
thing like that” before the Union “would come in.” The
General Counsel did not allege that this letter—which
does not substantially differ from Bagby’s statement to
Rast and Hammes—was unlawful.4
Bagby’s statement, like the Respondent’s earlier law-
ful letter, was based on circumstances that justified de-
laying the start of collective bargaining—ongoing litiga-
tion concerning the Respondent’s election objections—
and the statement accurately reflected the reality that it
could be years before the litigation ended, and even if the

3 The Respondent filed objections to conduct affecting the election.
In May 2014, the Board overruled those objections without a hearing.
Durham School Services, LP, 360 NLRB No. 108 (2014). (I dissented
in part and would have remanded for a hearing on one of the objections.
Id., slip op. at 3-5.) In July 2014, the Respondent filed a motion for
reconsideration of the Board’s decision. That motion was still pending
when Bagby made the statement at issue here. In October 2014, the
Board denied the motion for reconsideration. Durham School Services,
LP, 361 NLRB No. 66 (2014). In order to exercise its right to appeal
the Board’s decisions to a federal court of appeals, it was necessary for
the Respondent to refuse to bargain with the Union. In December
2014, the Board issued its decision finding the refusal to bargain violat-
ed Sec. 8(a)(5) of the Act. Durham School Services, LP, 361 NLRB
No. 121 (2014). The Respondent then petitioned for review in the
Court of Appeals for the District of Columbia Circuit, raising the un-
derlying election-related issues, and the court issued its decision in May
2016. Durham School Services, LP v. NLRB, 821 F.3d 52 (D.C. Cir.
2016).
4 Although Bagby testified that he was not “sure” about the exact
content of the letter, the judge found credible Bagby’s testimony con-
cerning its general content. The judge found that Babgy’s “years and
years” remark “was consistent with the Company’s prior letter to em-
ployees informing them that the issue was in litigation and could take a
year to resolve.” There are no exceptions to this finding.
results of the election were ultimately upheld, it could
take a further substantial period of time for the parties to
negotiate an initial collective-bargaining agreement.
Under these circumstances, Bagby’s statement was not a
threat of futility. See Histacount Corp., 278 NLRB 681,
689–690 (1986) (statement that it “would take 2 years or
more before the Company would be legally compelled to
bargain” was not a threat of futility where the company
had colorable grounds to file objections and where legal
proceedings “might take a considerable length of time”).
Moreover, Bagby’s statement was not of the kind typi-
cally found to constitute a threat of futility. He did not
say that the Respondent would never bargain with the
Union, threaten employees with loss of benefits because
they chose union representation, or in any other manner
state or imply that the Respondent would ensure its non-
union status by unlawful means. Cf. Libertyville Toyota,
360 NLRB No. 141, slip op. at 1 (2014) (finding a threat
of futility where an employer suggested that “bargaining
might never begin” and employees would lose benefits,
not because of the uncertainties of collective bargaining,
but because they selected a union) (emphasis in original),
enfd. sub nom. AutoNation, Inc. v. NLRB, 801 F.3d 767
(7th Cir. 2015); Winkle Bus Co., 347 NLRB 1203, 1204
(2006) (“An unlawful threat of futility is established
when an employer states or implies that it will ensure its
nonunion status by unlawful means.”) (citing Ready Mix,
Inc., 337 NLRB 1189, 1190 (2002)); Venture Industries,
330 NLRB 1133, 1133 (2000) (manager unlawfully con-
veyed that unionization would be futile by telling em-
ployees that “as far as he was concerned the plant would
never be a union shop” during speech in which he also
threatened loss of jobs and loss of promotional opportu-
nities).5
3. Reference to an employee’s participation in open,
visible, and publicized union activities
Also in September 2014, the Union staged a “practice”
strike in a local park. Rast and Hammes were among the
roughly 20 people who participated in the practice strike.

5 In finding Bagby’s “years and years” statement to be a threat of fu-
tility, the judge “blended” that statement with Bagby’s statement, earli-
er in the same conversation, that the Respondent had decided not to
select Rast or Hammes for a trainer position. The General Counsel did
not allege that these employment decisions were unlawful, and Bagby
went on to offer both Rast and Hammes the opportunity to act as men-
tors, which he explained would prepare them for future trainer posi-
tions. The record reveals nothing threatening about this brief and seem-
ingly friendly discussion, which took place at a bar while the three
shared drinks. Unlike the judge, I would not find that this earlier dis-
cussion, when “blended” with Bagby’s accurate “years and years”
statement, somehow indicated to Rast and Hammes that it would be
futile to continue supporting the Union.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
The record shows, and the judge found, that (1) local
television covered the event, (2) Bagby saw the televi-
sion coverage, and (3) a photograph of Rast holding a
prounion sign at the practice strike was posted on social
media. Although the judge does not mention this in his
decision, the record also establishes that Rast acknowl-
edged the television coverage and that photographs of
her participating in the practice strike appeared on social
media. Rast further testified that photographs taken at
the strike and posted on social media showed employees
standing in the back of her truck. And both Rast and
Hammes testified that the practice strike took place
alongside a busy highway.
The practice strike took place the day before Bagby’s
conversation with Rast and Hammes discussed in the
previous section (concerning an alleged threat of futility).
During this same conversation, Bagby told Rast that he
had seen her “during the day.” Rast asked if Bagby was
referring to the practice strike. Bagby said he was and
added that it was hard to miss Rast standing on a truck.
In agreement with the judge, my colleagues find that
Bagby’s statement that he had seen Rast at the practice
strike created the impression that employees’ union ac-
tivities were under surveillance. The judge based his
finding on the fact that Bagby did not expressly state that
he knew Rast had participated in the practice strike be-
cause he had seen her on television or social media, and
my colleagues agree with the judge’s rationale. I believe
that Rast would have understood as much without being
told. Rast knew that local television covered the strike,
that photographs of her at the strike had been posted on
social media, and that photographs taken at the practice
strike included individuals standing in her truck.
Bagby’s reference to Rast “standing on a truck” would
have left no doubt that Bagby was aware of Rast’s partic-
ipation in the strike through social media. Although
Hammes did not confirm that she also knew the event
had been publicized, the event itself was highly visible,
and Hammes testified that it occurred alongside a busy
highway. When union activity is conducted openly, it is
unreasonable to conclude that a statement indicating that
the activity has been observed creates an impression of
surveillance. See, e.g., Waste Management of Arizona,
345 NLRB 1339, 1339–1340 (2005) (manager did not
create impression of surveillance by telling employee “he
knew that employees had held a union meeting,” where
the General Counsel did not show that the meeting was
held in secret and “given the various other ways in which
[the manager] might have learned of the nonsecret meet-
ing”); Michigan Roads Maintenance Co., 344 NLRB
617, 617 fn. 4 (2005) (manager did not create impression
of surveillance by telling employee who had just finished
placing union flyers on vehicles parked in employer’s
parking lot not to “start that union stuff on this property,”
where the employee’s union activity was conducted “in
the open”). Moreover, Bagby did not reveal detailed
knowledge about the practice strike. Cf. United Charter
Service, 306 NLRB 150, 151 (1992) (even assuming em-
ployees’ union meeting at a restaurant was common
knowledge, manager created an impression of surveil-
lance when he “went into detail about the extent of the
[meeting] and the specific topics [employees] dis-
cussed”).6
In the ways and for the reasons set forth above, I re-
spectfully dissent.7
Dated, Washington, D.C. August 26, 2016
______________________________________
Philip A. Miscimarra, Member
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-
fits and protection
Choose not to engage in any of these protected
activities.

6 During his conversation with Rast and Hammes, Bagby comment-
ed that they should be careful who they “danced with in the park.”
Given the totality of the circumstances noted above, I do not believe
that this isolated comment would have suggested to Rast and Hammes
that Bagby was aware of their participation in the strike through surrep-
titious means. Notably, the General Counsel did not allege that this
comment constituted an independent violation of the Act.
7 I agree with my colleagues that the Respondent violated Sec.
8(a)(1) by prohibiting employees from serving cakes at company events
that displayed union insignia. I do not agree, however, that this isolated
incident constituted the promulgation of a “rule,” as found by the judge.
DURHAM SCHOOL SERVICES, L.P. 7
WE WILL NOT coercively interrogate or poll you about
your union support or union activities.
WE WILL NOT threaten to deny your leave requests
when you seek to engage in union or other protected ac-
tivities.
WE WILL NOT tell you that it is futile to choose the Un-
ion for representation because it will take years for the
Union to effectuate its representation.
WE WILL NOT create the impression that your union ac-
tivities are under surveillance.
WE WILL NOT promulgate a rule prohibiting you 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
listed above.
WE WILL rescind the orally promulgated rule prohibit-
ing you from displaying union insignia on cakes served
at potluck events in the workplace.
DURHAM SCHOOL SERVICES, LP
The Board’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.
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, Ware-
housemen 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 consist-
ing 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 alleg-
es the Company violated Section 8(a)(3) of the Act by decreas-
ing the work hours and pay of employee Diane Bence, a promi-
nent leader of the Company’s prounion contingent.
On the entire record,2 including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Company, I make the following
FINDINGS OF FACT
I. JURISDICTION
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 re-
ceives goods valued in excess of $5000 directly from points
outside the State of Florida. The Company admits, and I find,
that it is 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
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.
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 one-
self.” The Company only provides paid days of absence for
bereavement leave. All other leave or time off is unpaid.3
B. The Union Campaign
At the time that the Company began Santa Rosa County op-
erations in 2008, its drivers were represented by the Amalga-
mated Transit Union (ATU). However, the employees became
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), em-
ployees initiated a campaign to bring in the Union. The Union

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.
3 Leave and time off during the school year referred to interchangea-
bly. In either instance, Company approval is required. (GC Exh. 5 at
56.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
prevailed in the election vote tally on February 22, 2013, objec-
tions 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 the matter is pend-
ing before the United States Court of Appeals for the D.C. Cir-
cuit.
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 regu-
lar bus routes out of the Navarre facility, was active in the ATU
decertification campaign and the 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 open and notorious support
for the Union, including the wearing of prounion shirts and pins
on her work clothing, continued through the election and con-
tinues to the present.4
C. Company Statements During the Campaign
During the month leading up to the February 22 representa-
tion 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 mes-
sage was that the vote was secret, the Company was working to
improve communications, and a union was not necessary.
Bauman was well aware of Bence’s leading role in the Un-
ion’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 in-
stance 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 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 can count on you for a no
vote, right?” Marcus nodded in the affirmative.6

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.)
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, 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 organ-
ization. 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.
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 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 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 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
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 compen-
sated, Bence acknowledged that she would receive a lump-sum
payment for the trip. Bauman reiterated that, in accordance with

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.)
9 The undisputed and credible testimony of Bence and another driv-
er, 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.)
DURHAM SCHOOL SERVICES, L.P. 9
Company policy, Bence’s leave request would only be ap-
proved if the Union was not 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
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.12
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
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 Ex-
press’ president, Sir John Armitt, assured Bence her job was
secure, while Dean Finch, the chief executive officer, apolo-
gized for the difficulties she encountered. Bence then com-
plained about the Company’s working conditions in the United
States, including passenger overcrowding 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 La-
trisha 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 history with the Company and ex-
plaining 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.14
Upon returning to work, Bence reported her conversation with
Duke to numerous coworkers.

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 deny-
ing any further conversations with Bence about her trip (Tr. 295–296).
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 testi-
fy.
F. Alleged Reduction in Bence’s Hours And Pay
Prior to December 2012, Bence picked up students and
dropped them off at three 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 con-
sistent overtime accruals of another driver, John Dore, by ask-
ing Bence to take on an additional bus route from Navarre High
School to Gulf Breeze. Bence agreed and picked up the addi-
tional 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 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, the drivers were told that most
schedules would remain the same. Bence picked up her sched-
ule 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, 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

15 Given the regularity of Bence’s schedule amounting to over 30
hours per week, weeks when she worked less than 30 hours were atypi-
cal 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.)
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 regu-
lar 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 con-
versations (Tr. 101–102, 136–138, 140.) Willoughby, on the other
hand, simply could not recall any such conversations. (Tr. 351–352,
364.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
covering the additional route.19 The Navarre to Gulf Breeze
afternoon route was reassigned to John Dore, but 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 2013.21
G. September 26, 2014—Pier Bar Allegations Involving
Jim Bagby
Ashley Hammes and Samantha Rast were drivers in the Na-
varre facility. Prior to September 2014, Hammes and Rast dis-
cussed the merits of union representation with Bagby. 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 con-
cerns. 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
By September 2014, however, Hammes and Rast resolved
their conundrum and participated in a Union-coordinated prac-
tice strike at Navarre Park. During the practice strike, which
lasted about an hour, about 20 employees chanted union slo-
gans and held signs. The event was covered by local television.
In addition, a photograph of Rast holding a prounion sign ap-
peared 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, 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 eventu-
ally came out to meet Hammes, but due to time constraints,
suggested she meet him after work for drinks at the Pier Bar.
Hammes agreed. Bagby extended a similar invitation to Rast

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.)
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.)
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. Hammes asked Bagby about a second
interview. Bagby informed her that she would not get another
interview since Quinn already selected someone else. He add-
ed, 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
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 men-
tor position. Rast also accepted his suggestion. At some point,
they moved to a smoking table. After Bagby and Rast conclud-
ed discussion of the trainer position, the conversation turned to
the Union. At some point during the conversation, Bagby re-
sponded 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 employ-
ees would have to pay dues regardless of whether they support-
ed or opposed the Union. Rast responded that she was neither
for the Union nor for the Company, but she would listen to both
sides.26
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 clarifi-
cation, Rast asked if he was referring to the practice strike.

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 where-
abouts 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 be-
tween 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 prac-
tice 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.)
DURHAM SCHOOL SERVICES, L.P. 11
Bagby acknowledged that he was, adding that it was hard to
miss 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
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 supple-
ment 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.29 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 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 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 function. Nowling-Driggers asked if
the cake could stay if she smeared the union inscription. He
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 pot-
luck lunch. That morning, Cameron also provided Donna

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 dis-
cussion lasted only a few minutes. (Tr. 258–266.) According to Ham-
mes, 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 undis-
puted. (Tr. 204–205, GC Exh. 4.)
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 Nowl-
ing-Driggers to remove the cake because it was a Company function.
(Tr. 335–336.)
Snead, a driver at the Milton facility, with another sheet cake
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 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 Virgin-
ia 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 dispatch-
er's office. Later on, several drivers cut up the cake and took it
home.32
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.33
Legal Analysis
I. BAUMAN’S PREELECTION INTERROGATION
The General Counsel alleges that Bauman unlawfully inter-
rogated and/or polled Bence and Marcus about the representa-
tion 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.
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 peculi-
ar statement by Bauman since he knew of Bence’s open and
notorious advocacy for union representation. He 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 “get-
ting a little heavy?”
Bauman’s advocacy continued on the day of the election
when he asked Donna Marcus, a driver working at the Navarre
facility due to an injury, “I guess we can count on you for a no

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.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
vote, right?” Marcus nodded in the affirmative.
The Board looks at the totality-of-the-circumstances to de-
termine whether under all the circumstances the questioning at
issue would reasonably tend to restrain the affected employee
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 Employ-
ees 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 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 em-
ployee'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 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 up-
coming secret election. In Bence’s case, Bauman conceded an
awareness of her strong support for union representation, yet he
still 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 Un-
ion. The Board has found that such interrogation regarding
union elections is coercive and violates Section 8(a)(1). Shep-
herd 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
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 (1994), enfd. as modified on
other grounds 115 F.3d 636 (9th Cir. 1997); Blue Flash Ex-
press, 109 NLRB 591 (1954).
The General Counsel relies on Cardinal Home Product, Inc.,
338 NLRB 1004, 1007 (2003), for the proposition that Bau-
man’s statement is no less coercive because Bence was 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 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 be-
cause, 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 must also consider
Bence’s level of prominence in the union campaign in deter-
mining whether an atmosphere of coercion reasonably existed.
Under the circumstances, it did not.
II. BAUMAN’S STATEMENTS REGARDING BENCE’S
LONDON TRIP
The complaint further alleges that Bauman unlawfully inter-
rogated 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 or-
ganization in London. In the second instance, Bauman threat-
ened to deny Bence’s leave request on May 1, 2013, if she was
being compensated by the Union for the trip.
The Company acknowledges Bence’s statutory right to en-
gage in union activities, but insists Bauman’s inquiry was justi-
fied because he reasonably believed she intended to travel to
London for union-related business. If true, such activity
amounted to other employment, which Bauman believed would
violate the Company’s policy prohibiting employees from tak-
ing leave to engage in other employment. As such, the Compa-
ny 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
employment.
Neither the lawfulness of the Company’s policy against out-
side 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 “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 con-
cerns. 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.” 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 na-
ture of Bauman's statement was also evident by the clear impli-
cation that Bence would violate Company policy if she accept-
ed funding for the trip by the Union and, thus, subject to disci-
plinary 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 privi-
lege 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
DURHAM SCHOOL SERVICES, L.P. 13
Board law 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 viola-
tion of Company policy is distinguishable from cases in which
interrogation was deemed justified based on alleged miscon-
duct. Cf. Bridgestone Firestone South Carolina, 350 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.
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 conse-
quence. The statement stemmed from Bauman’s unlawful inter-
rogation and sought to intimidate Bence from traveling to the
National Express meeting in order to engage in concerted activ-
ity. Thus, the statement went beyond merely restating Company
policy. See Arkansas Grain Corp., 166 NLRB 111 (1967) (vio-
lation where statement was not limited merely to the Company
break policy).
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 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 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, the Company’s chief executive
officer, David Duke, interrogated Bence regarding the source of
her compensation for the trip. The Company denies the exist-
ence of Board jurisdiction over this allegation because it ac-
crued outside of the United States. Assuming that jurisdiction
exists, the Company also denies that Duke’s question was coer-
cive.
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 extraterritori-
ally. The General Counsel’s argues 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 employ-
ee performed regular work in the United 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 circumstanc-
es. In Asplundh, the Board upheld jurisdiction over an unfair
labor practices committed in Canada. The case involved Amer-
ican 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 Amer-
ican 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 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 employ-
ment relationships are with American firms in the United States
do not lose the protection of the Act while on temporary as-
signment outside of this country, particularly where extending
the Act's protections would not interfere with the laws of an-
other nation.” Id. The Third Circuit subsequently disagreed and
denied enforcement of the Board’s order, finding no Congres-
sional 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 Cir.
2004). Nevertheless, the Board’s decision remains agency prec-
edent. See, e.g., Pathmark Stores, Inc., 342 NLRB 378 n. 1
(2004); Waco, Inc., 273 NLRB 746, 749 fn. 14 (1984); Los
Angeles New Hospital, 244 NLRB 960, 962 fn. 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).
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 work-
force for unfair labor practices committed in Mexico. Califor-
nia 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 implicate Mexico’s laws or
employment conditions, the remedial order only had effect
within the United States, and asserting jurisdiction did not in-
terfere 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, 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 ad-
dressed working conditions involving the Company’s opera-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
tions 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 Compa-
ny that she was still subject to her usual terms and conditions of
employment while abroad. England’s ability to regulate its
affairs is not affected. However, the alleged unfair labor prac-
tice continuing having an effect in the United States after Bence
returned to work and told coworkers about Duke’s attempt to
elicit information from her about the source of her funding for
the trip. Under the circumstances, application of Board prece-
dent in Asplundh and California Gas Transport to the afore-
mentioned facts clearly establishes Board jurisdiction over this
controversy.
B. The Coercive Nature of Duke’s Inquiry
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 Compa-
ny 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 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 state-
ments 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 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 coer-
cive and violated Section 8(a)(1) of the Act. See Cardinal
Home Products, Inc., 338 NLRB at 1007.
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, however, Bence did not suffer ad-
verse action, but if so, the route change was unconnected to her
union-related activities.
In determination whether adverse employment action is at-
tributable to unlawful discrimination, the Board applies the
analysis set forth in Wright Line, 251 NLRB 1083 (1980), 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 ac-
tivity, and union animus on the part of the employer. Amglo
Kemlite Laboratories, 360 NLRB 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 discriminato-
ry 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 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 affilia-
tion, and an employer's deviation from past practice. 764 F.2d
at 1429.
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 pro-
tected 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 explana-
tion is pretextual, thereby restoring the inference of unlawful
motivation. NLRB v. United Sanitation Serv., 737 F.2d 936, 939
(11th Cir.1984).
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 con-
sistent with her historical hours and pay over the past several
years. The fact remains, however, that Bence received a new
schedule when she took on a portion of Dore’s route in Decem-
ber 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 schedule reverted to the
one she enjoyed for years until December 2012, there is no
credible evidence establishing that her December—June as-
signment 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).
Although Bence suffered adverse action, the weight of the
credible evidence strongly suggests that Willoughby made the
scheduling change for legitimate business and operations rea-
sons. The timing of the change is not suspect; it was announced
at the beginning of the new school year. Moreover, Bence con-
firmed the Company’s contention that it abhors the accrual of
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 suf-
ficiently 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 Cir. 2002) (where a
DURHAM SCHOOL SERVICES, L.P. 15
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 es-
tablish that the adverse action experienced by Bence when the
Company assigned her a new bus route in August 2013 was
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) 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 im-
pression 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 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, however, they decided to participate in
a union-sponsored practice strike at Navarre Park. Bagby ob-
served 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 se-
lected for trainer positions. Both agreed.
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 Hammes and Rast or ut-
tered 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 discus-
sion about the Union, he did express other unsolicited views.
Three of those crossed the line. In one instance, he opined it
would be “years and years” before union representation materi-
alized. That comment, blended into a conversation by a high-
level supervisor about the potential for future promotion, rea-
sonably 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).
In the second instance, Bagby diverted the discussion by im-
plying that he observed Rast and Hammes participate at the
union-sponsored practice strike in Navarre Park. He also sug-
gested that Rast, standing on top of a vehicle holding a proun-
ion sign during the practice, should be careful who she was
dancing with in Navarre Park. Although the event was on social
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 circum-
stances, Hammes and Rast would have reasonably assumed
from Bagby’s comment that their Section 7 activities were un-
der surveillance in violation of Section 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 Stevedor-
ing 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 surveil-
lance.” Michigan Roads Maintenance Co., 344 NLRB 617, 623
(2005) (unlawful interrogation where there was an “obvious
connection” between the questioned activity and a contempora-
neous unfair labor practice).
Responding to Bagby’s coercive remark about her participa-
tion in the practice strike, Hammes equivocated, telling Bagby
she was unsure about her support for the Union. Bagby re-
sponded by asking if Hammes “was pulling his leg” with her
shifting allegiances. By 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
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 al-
legedly promulgated a rule at the Milton facility restricting the
type of food that can be brought to potluck lunches. The Com-
pany 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.
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 Re-
public Aviation Corp., 324 U.S. 793 (1945). Special circum-
stances exist “when their display may jeopardize employee
safety, damage machinery or 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 spon-
sored a potluck lunch at each of its Santa Rosa County facili-
ties. The Company provided food entrees, which employees
supplemented with homemade and purchased food and des-
serts. Their culinary contributions were neither coordinated nor
restricted by supervisors or managers in any respect.
On December 19, cakes topped with buses inscribed with un-
ion insignia were brought to 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 tables as to its origin. The employ-
ee identified the local bakery where it came from, but that ex-
planation did not satisfy Bagby and he instructed her to remove
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
the cake because it was a Company function. After she suggest-
ed 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
employee explained that she did not know where it came from,
Bagby directed it be removed and added the additional imped-
iment that it was a Company event.
Bagby offered two rationales for requiring employees to alter
the cake or remove them altogether: employees failed to identi-
fy the origin of the cakes and/or it was a Company-sponsored
event. The Company explains the origination factor as a com-
mon 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 promotional value that the insignia
atop the cake represented to the Union. In the absence of spe-
cial circumstances, it is clear that Bagby spontaneously and
unlawfully created a new rule for the obvious purpose of sti-
fling 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 Heritage Village-Livonia, 343 NLRB 646, 647 (2004)
(violation where rule was promulgated in response to union
activity, would be reasonably construed as prohibiting Section
7 activity or was applied to restrict Section 7 rights).
CONCLUSIONS OF LAW
1. The Company violated Section 8(a)(1) of the Act on Feb-
ruary 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 interrogated employee Diane Bence as to wheth-
er 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 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 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 the impression that Rast's
union activities were under surveillance by telling her to watch
who she dances with in Navarre Park, and interrogated Ham-
mes about her union sympathies.
6. The Company violated Section 8(a)(1) on December 19,
2014, when Bagby spontaneously promulgated a rule prohibit-
ing employees Vera Nowling-Driggers at the Pace 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 com-
merce within the meaning of Section 2(6) and (7) of the Act.
8. All other complaint allegations not specifically addressed
above are dismissed.
REMEDY
Having found that the Company has engaged in certain un-
fair 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.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended34
ORDER
The Company, Durham School Services, L.P., Santa Rosa
County, Florida, its officers, agent, successors, and assigns,
shall
1. Cease and desist from
(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.
(c) Telling employees that it is futile to choose the Union for
representation because it will take years for the Union to effec-
tuate its representation
(d) Creating the impression that employee union activities
are or were under surveillance.
(e) Promulgating a rule prohibiting employees from serving
cakes at Company events because they display union insignia.
(f) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its
Santa Rosa County facilities in Pace, Milton and Navarre, Flor-
ida, 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

34 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed 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 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 SERVICES, L.P. 17
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 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, 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 no-
tice to all current employees and former employees employed
by the Company at any time since February 2013.
(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.
Dated, Washington, D.C. October 30, 2015
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 no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
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 employ-
ee who seeks to engage in union or other protected concerted
activities.
WE WILL NOT tell employees that it is futile to choose the Un-
ion for representation because it will take years for the Union to
effectuate its representation
WE WILL NOT create the impression that employees union ac-
tivities 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, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
DURHAM SCHOOL SERVICES, L.P.
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.