First Student, Inc., a division of First Group America

National Labor Relations Board - Board Decisions

Feb 6, 2018

366 NLRB No. 13 (N.L.R.B. 2018)

366 NLRB No. 13
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.
First Student Inc., A Division of First Group America
and Local 9036, United Steel, Paper and Forest-
ry, Rubber, Manufacturing, Energy, Allied In-
dustrial and Service Workers International Un-
ion (USW) AFL–CIO. Case 07–CA–092212
February 6, 2018
DECISION AND ORDER
BY CHAIRMAN KAPLAN AND MEMBERS PEARCE
AND MCFERRAN
On December 13, 2013, Administrative Law Judge
Mark Carissimi issued the attached decision. The Re-
spondent filed exceptions and a brief in support, the
General Counsel and the Charging Party filed answering
briefs, and the Respondent filed reply briefs. The Gen-
eral Counsel also filed cross-exceptions and a brief in
support, and the Respondent filed an answering brief.
Finally, the Charging Party filed exceptions and a brief in
support, the Respondent filed an answering brief, and the
Charging Party filed a reply 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, findings,1 and conclusions
only to the extent consistent with this Decision and Or-
der, to amend his remedy, and to adopt the recommended
Order as modified and set forth in full below.2
The Respondent admits that it is a legal successor to
the Saginaw School District (School District) and, as
such, obligated to recognize and bargain with the incum-
bent bargaining representative of a unit of bus drivers
and monitors, a majority of whom formerly worked for
the School District. For the reasons stated fully in the
judge’s decision, we affirm his findings that the Re-
spondent violated Section 8(a)(5) and (1) of the Act by
unilaterally implementing a new attendance policy in

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 In accordance with our decision in AdvoServ of New Jersey, Inc.,
363 NLRB No. 143 (2016), we shall include the requisite tax compen-
sation and Social Security reporting remedy, and shall modify the
judge’s recommended Order and substitute a new notice to reflect this
remedial change and to conform to the violations found and the Board’s
standard remedial language.
August and September 2012 and by delaying bargaining
from August 17 to October 17, 2012.3 For the reasons
set forth below, however, we find, contrary to the judge,
that the Respondent was a “perfectly clear” successor
employer and that it violated Section 8(a)(5) and (1) of
the Act by failing to provide the Union with notice and
an opportunity to bargain before imposing initial terms
and conditions of employment for the unit employees.
I. FACTS
Until 2012, the School District directly employed driv-
ers and assistants to perform school bus transportation
services. They were represented by the United Steel
Workers International Union (USW) and Local 8410.4
The most recent collective-bargaining agreement cover-
ing the School District’s bus drivers was effective from
August 27, 2010, through August 31, 2012.
In response to the School District’s request for pro-
posals for subcontracting out school bus transportation
work for the 2012–2013 school year,5 the Respondent

3 Unlike the judge, we also find an independent 8(a)(5) violation for
the Respondent’s act of conditioning the commencement of bargaining
on the Union’s agreement to withdraw the unfair labor practice charge
filed on September 21, 2012, alleging a refusal to recognize and bar-
gain. The record clearly establishes, and the judge found, that the Re-
spondent made this unlawful proposal on October 1, stating that if the
Union did not withdraw the charge the Respondent would not be able to
begin negotiations until the Board concluded its investigation. The
Respondent reiterated its position on October 3. At this point, the
Respondent had already unlawfully delayed bargaining from August
17. On October 5, the Respondent withdrew its withdrawal demand
and agreed to begin negotiations on October 15. The judge, however,
declined to find a separate violation for this conduct because “the Re-
spondent raised the issue only briefly [and] did not insist to impasse on
it . . . .” The issue here, however, is not whether a party may propose
the withdrawal of an unfair labor practice during ongoing collective-
bargaining negotiations. It is whether a party may condition the com-
mencement of negotiations on a withdrawal. On this point, Board law
is clear that “an employer may not condition bargaining on the with-
drawal of unfair labor practice charges or other litigation.” Caribe
Staple Co., 313 NLRB 877, 890 (1994); United Brotherhood of Car-
penters, 195 NLRB 799, 806 (1972). Accordingly, we find that the
Respondent’s withdrawal precondition, even though it was maintained
for only a few days, constituted a separate violation.
4 In exceptions, the Respondent challenges the judge’s findings that
the USW and Local 8410 were the joint representatives of the unit
employees from at least August 27, 2010, to June 5, 2013, and that the
USW and Local 9036 were the joint representatives of the unit employ-
ees from June 5, 2013, to the present. For the reasons set forth in the
judge’s decision, we find no merit in the Respondent’s challenges. We
will refer to the USW and Local 8410 and the USW and Local 9036
collectively as “the Union” herein. We find no merit to the Respond-
ent’s exception to the judge’s grant of the General Counsel’s motions to
amend the complaint to correct the references to the unions, or its ex-
ception to the judge’s decision not to dismiss the complaint on Sec.
10(b) grounds, for the reasons stated by the judge.
5 The judge’s decision details, and then references, the School Dis-
trict’s initial request for subcontracting proposals for the 2011–2012
school year and the Respondent’s communications related thereto. We
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
submitted a bid proposal on February 3, 2012.6 Thereaf-
ter, the School District entered into negotiations with the
Respondent for the transportation services contract.
While those negotiations were pending, the School Dis-
trict arranged for a meeting between representatives of
the Respondent and School District unit employees. Ap-
proximately 40 unit employees attended the meeting,
which took place on March 2.
At this meeting, the Respondent’s area general manag-
er Douglas Meek told the unit employees that, if the Re-
spondent and the School District agreed to a contract, the
Respondent would offer employment to current employ-
ees who submitted an application and met the Respond-
ent’s hiring criteria, which included a background check,
physical examination, drug screen, and training. The
record establishes that these requirements were con-
sistent with the School District’s hiring criteria and the
general eligibility requirements for bus drivers in the
industry. In response to a question regarding how many
current employees would be hired, Meek stated that the
Respondent typically hires 80 to 90 percent of an exist-
ing workforce when it assumes operations. Meeks fur-
ther stated that if the workforce is represented and the
Respondent hires 51 percent of the employees, it will
recognize the union and negotiate a new contract. When
asked about guaranteed hours for employees, Meek re-
sponded that the Respondent would use the School Dis-
trict’s routing system and would not be able to provide
information regarding hours until the routes were estab-
lished. He also indicated that other terms and conditions
of employment would be subject to negotiations.
In early May, the School District and the Respondent
reached agreement on the terms of a transportation ser-
vices contract. Thereafter, at a public meeting held on
May 16, the Board of Education took up the issue of
whether to approve the contract. USW representative
Tonya DeVore and at least five unit employees attended
the meeting, at which Daniel Kinsley, the Respondent’s
development manager, answered questions from the
Board. Kinsley stated that the Respondent would hire
the current School District employees if they submitted
applications and met the Respondent’s hiring criteria,
which included a background check, a drug screen, an
interview, and dexterity tests. He indicated that the Re-
spondent would hire the applicants at the same rate of
pay they had been receiving from the School District and
that, if 51 percent or more of the existing workforce was
hired, the Respondent would recognize the Union. The

find it unnecessary to rely on the judge’s analysis of the parties’ com-
munications relating to that initial request for proposals, which the
School District ultimately withdrew.
6 All dates hereafter will refer to 2012, unless otherwise noted.
Board voted to approve the contract between the Re-
spondent and the School District.
Immediately following the meeting, Kinsley spoke
with union representative DeVore and several unit em-
ployees, clarifying that the Respondent would recognize
the Union if it hired 50 percent “plus one” of the existing
School District employees. Kinsley also stated that the
Respondent’s goal was to hire as many of the existing
employees as possible who met the hiring criteria, and
that the Respondent would maintain the existing wages.
On May 17, almost all of the School District’s unit
employees attended a meeting with several representa-
tives of the Respondent. At the meeting, Meek briefly
discussed the Respondent’s operation and management
structure. Thereafter, the Respondent distributed a
memo to the School District employees, inviting them to
apply for employment. The memo stated that “[a]ll cur-
rent Saginaw Public School drivers and monitors who
successfully pass the [Respondent’s] hiring criteria will
be offered an employment opportunity with First Stu-
dent.” The memo also set forth several terms and condi-
tions of employment that were different from the em-
ployment terms set forth in the School District collective-
bargaining agreement under which the unit employees
had worked. For example, the memo stated that employ-
ees would retain the same pay for transportation duties
but would receive a lower rate for other duties, such as
training and clerical work. Under the collective-
bargaining agreement, employees had received the same
hourly wage rate for all work performed. Similarly, the
memo set forth a lower number of guaranteed hours than
had been in place under the collective-bargaining agree-
ment and provided a different method for paying em-
ployees for participating in training.
II. DISCUSSION
In NLRB v. Burns International Security Services, Inc.,
406 U.S. 272, 281–295 (1972), the Supreme Court held
that a successor is not bound by the substantive terms of
a collective-bargaining agreement negotiated by the pre-
decessor and is ordinarily free to set initial terms of em-
ployment unilaterally. However, it recognized that
“there will be instances in which it is perfectly clear that
the new employer plans to retain all of the employees in
the unit,” and in those circumstances, the successor is
required to “initially consult with the employees’ bar-
gaining representative before he fixes terms.” Id. at 294–
295. In Spruce Up Corp., 209 NLRB 194 (1974), enfd.
mem. 529 F.2d 516 (4th Cir. 1975), the Board considered
the scope of the Burns “perfectly clear” successor excep-
tion and held that it “should be restricted to circumstanc-
es in which the new employer has either actively or, by
tacit inference, misled employees into believing they
FIRST STUDENT INC., A DIVISION OF FIRST GROUP AMERICA 3
would all be retained without change in their wages,
hours, or conditions of employment, or at least to cir-
cumstances where the new employer . . . has failed to
clearly announce its intent to establish a new set of con-
ditions prior to inviting former employees to accept em-
ployment.” Id. at 195 (footnote omitted).
In Nexeo Solutions, LLC, 364 NLRB No. 44 (2016),
the Board recently reviewed cases subsequent to Spruce
Up that more specifically defined the parameters of the
“perfectly clear” exception with respect to the timing and
clarity of the announcement of new terms of employ-
ment. The Nexeo decision explains that, in those cases,
the Board clarified that the exception is not limited to
situations where the successor fails to announce initial
terms before extending a formal invitation to the prede-
cessor’s employees to accept employment. Rather, the
bargaining obligation attaches when a successor ex-
presses an intent to retain the predecessor’s employees
without making it clear that employment will be condi-
tioned on acceptance of new terms. Canteen Co., 317
NLRB 1052, 1053–1054 (1995) [enfd. 103 F.3d 1355
(7th Cir. 1997)]. To avoid “perfectly clear” successor
status, a new employer must clearly announce its intent
to establish a new set of conditions prior to, or simulta-
neously with, its expression of intent to retain the pre-
decessor’s employees. Spruce Up, 209 NLRB at 195;
Canteen, 317 NLRB at 1052–1054.
Nexeo, 364 NLRB No. 44, slip op. at 5–6 (footnote omit-
ted).7 Applying this established law, we find, contrary to
the judge, that the Respondent was a “perfectly clear” suc-
cessor to the School District and, therefore, violated the Act
by unilaterally changing unit employees’ terms and condi-
tions of employment without first bargaining with the Un-
ion.
From the very beginning of the transition process, well
before the formal hiring process began, the Respondent
clearly and consistently communicated its intent to retain
the School District’s unit employees. At the March 2
meeting, the Respondent stated that it would offer em-
ployment to all existing employees who completed ap-
plications and met its hiring criteria which, the record

7 See also Creative Vision Resources, LLC, 364 NLRB No. 91, slip
op. at 2–3, enfd. 872 F.3d 274 (5th Cir. 2017); Adams & Associates,
Inc., 363 NLRB No. 193, slip op. at 3 (2016), enfd. 871 F.3d 358, 373
fn. 6 (5th Cir. 2017); Elf Atochem North America, Inc., 339 NLRB 796,
807 (2003); DuPont Dow Elastomers LLC, 332 NLRB 1071, 1074
(2000), enfd. 296 F.3d 495 (6th Cir. 2002); Helnick Corp., 301 NLRB
128, 128 fn. 1 (1991); Fremont Ford Sales, 289 NLRB 1290, 1297
(1988); C.M.E., Inc., 225 NLRB 514, 514–515 (1976); Roman Catholic
Diocese of Brooklyn, 222 NLRB 1052, 1055 (1976), enf. denied in
relevant part sub nom. Nazareth Regional High School v. NLRB, 549
F.2d 873 (2d Cir. 1977).
establishes, are consistent with the School District’s hir-
ing criteria and industry-wide standards.8 The Respond-
ent underscored this intent by informing the employees
that it typically hired “80 to 90 percent” of an existing
workforce when taking over transportation duties from
another employer. The Respondent also stated that it
planned to recognize the employees’ existing union rep-
resentative, so long as “51 percent” of the existing work-
force was hired by the Respondent. Thereafter, in com-
ments during and following the May 16 Board of Educa-
tion meeting, the Respondent reaffirmed its intention to
retain the unit employees and further stated that it would
be maintaining their existing wages.
Having established that the Respondent first expressed
its intent to retain employees on March 2, the next ques-
tion is whether the Respondent “clearly announc[ed] its
intent to establish a new set of conditions” prior to or
simultaneously with its expression of intent to retain the
unit employees. Contrary to the judge, we find that it did
not. In reaching his conclusion, the judge misinterpreted
the import of statements made at the March 2 meeting
that matters such as paid time off, vacation pay, and sick
pay “would be subject to negotiations.” In the judge’s
view, this statement indicated “that the Respondent
would not be adopting the School District’s collective-
bargaining agreement and that new working conditions
would be implemented.” The problem with this reason-
ing is that it is based on an incorrect premise. Even “per-
fectly clear” successors are not required as a legal matter
to adopt their predecessor employer’s collective-
bargaining agreement. Rather, their statutory bargaining
obligation is only to maintain the status quo conditions of
employment under the predecessor until it bargains to
agreement or impasse with the representative union over
terms of a new collective-bargaining contract for the suc-
cessor workforce. Therefore, a successor’s announce-
ment that it will not be adopting the predecessor’s bar-
gaining agreement and that certain terms of employment
would be subject to negotiations conveys nothing more
than a statement of law--that the status quo may change
as a result of negotiations, but not in advance of them.9

8 Because these employees had all been hired under similar industry
standards by the School District, it follows that the employees had no
reason to doubt that they would be hired by the Respondent.
9 See Road & Rail Services, 348 NLRB 1160, 1162 (2006). In Road
& Rail, the Board found that the respondent was a “perfectly clear”
successor and that it therefore did not violate Sec. 8(a)(2) and (3) of the
Act by recognizing and entering into negotiations with the union that
represented its predecessor’s employees before hiring its work force
and commencing operations. Id. The Board rejected the argument that
it was not clear that the union would have majority status in the new
work force because the respondent informed the union that it desired to
negotiate different terms and conditions of employment simultaneously
with its expression of intent to retain the predecessor’s employees. Id.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
The judge also erred in finding that the Respondent’s
statements about the employees’ hours and routes at the
March 2 meeting were sufficiently clear to put them on
notice that there would be changes in the initial terms
and conditions of their employment. Specifically, the
Respondent stated that it did not know how many hours
would be guaranteed the employees because employee
hours would depend on the routes established by the
School District’s routing system. This assertion does not
constitute an affirmative statement that terms and condi-
tions will be changed; rather, the Respondent merely
indicated that it would continue to use the School District
routing system (presumably the same system that had
been in place when the School District employed the unit
employees) but did not have information regarding
routes at that time. The statement was therefore not suf-
ficient to fulfill the obligation, under Spruce Up, that a
new employer clearly announce its intention to establish
new conditions.10

at 1162–1163. Contrary to the judge, Road & Rail is not distinguisha-
ble on the grounds that it “did not involve the issue of whether the
employees’ continued employment was contingent on their acceptance
of a successor’s unilateral implementation of the initial conditions of
employment.” The Board directly addressed the question that is before
the Board in this case—whether a successor’s expression of intent to
negotiate new terms and conditions of employment with the representa-
tive union renders the “perfectly clear” caveat inapplicable.
10 See Creative Vision Resources, supra, 364 NLRB No. 91, slip op.
at 4, fn. 12 (explaining that “to avoid ‘perfectly clear’ successor status,
a new employer must ‘clearly announce its intent to establish a new set
of conditions’” and “[a]lthough the announcement need not be made in
any particular form, it must be sufficiently clear that a reasonable em-
ployee in like circumstances would understand that continued employ-
ment is conditioned on acceptance of materially different terms from
those in place under the predecessor”). See also Nexeo, supra, 364
NLRB No. 44, slip op. at 7, 9, 11–12 fn. 33 (successor’s statements that
it would provide “equivalent salaries and benefits comparable in the
aggregate” to those provided by the predecessor and that it was “work-
ing hard to flesh out final plans for our new company’s compensation
and benefits program” were not sufficiently clear or definite to put
employees on notice of new terms); Elf Atochem, supra, 339 NLRB at
796, 808 (successor’s statement that it would provide “equivalent sala-
ries and comparable benefits” to those provided by the predecessor did
not signal a material change in terms and conditions of employment).
Contrary to the judge’s finding, Banknote Corp. of America, 315
NLRB 1041, 1043 (1994), enfd. 84 F.3d 637 (2d Cir. 1996), cert. de-
nied 519 U.S. 1109 (1997), does not support a different result. In that
case, the Board found that the new employer was not a “perfectly clear”
successor because “simultaneous with its stated intention to retain the
predecessor’s employees, the Respondent announced new terms and
conditions of employment.” See also Planned Building Services, 318
NLRB 1049 (1995) (“perfectly clear” successor not established where
“during its very first contact with [the predecessor’s] employees,” the
employer made clear that its offer to retain the employees was “based
on changed terms and conditions of employment”). No such simulta-
neous announcement was made in the instant case. We further note
that, contrary to the Respondent’s exceptions, Fremont Ford, supra,
289 NLRB 1290, supports, rather than contradicts, our holding. In that
case, the employer was found to be a “perfectly clear” successor at the
We further find that the judge misapplied well-
established precedent in finding that the Respondent’s
subsequent announcement of new initial terms and con-
ditions of employment on May 17 was a timely exercise
of the Burns successor’s right to unilaterally establish
initial terms and conditions of employment. The Board
has consistently held that a subsequent announcement of
new terms, even if made before formal offers of em-
ployment are extended, or before the successor com-
mences operations, will not vitiate the bargaining obliga-
tion that is triggered when a successor expresses an in-
tent to retain the predecessor’s employees without mak-
ing it clear that their employment is conditioned on the
acceptance of new terms.11
Our dissenting colleague’s more restrictive interpreta-
tion of the “perfectly clear” caveat is inconsistent with
the express language of the Supreme Court in Burns.
Moreover, it does not take into account the significant
reliance employees may place on statements of intent to
hire, to the exclusion of other employment opportunities.
Holding a successor to its initial statements of intent,
even when those statements are made before formal of-
fers of employment are extended or the transfer of own-
ership or operations is complete, prevents prospective
employers from inducing such reliance, only later to re-
veal that the employees’ terms of employment will be
changed.12 It also serves the important statutory policy
of fostering industrial peace in what the Supreme Court
has recognized may be an unsettling transition period for
unions and employees alike. See Fall River Dyeing &
Finishing Corp., 482 U.S. 27, 39–40 (1987).13

time when it first indicated that it intended to retain the predecessor’s
employees, which is consistent with our holding here.
11 See Creative Vision, supra, 364 NLRB No. 91, slip op. at 3 and
cases cited at fn. 10.
12 Nexeo, supra, 364 NLRB No. 44, slip op. at 9, citing S & F Market
Street Healthcare LLC v. NLRB, 570 F.3d 354, 359 (D.C. Cir. 2009);
International Assn. of Machinists and Aerospace Workers, AFL–CIO v.
NLRB, 595 F.2d 664, 674–675 (D.C. Cir. 1978), cert. denied 439 U.S.
1070 (1979). The Fifth, Sixth, and Seventh Circuit have also approved
this reasoning. Creative Vision, supra, 872 F.3d at 283; DuPont Dow
Elastomers, supra, 296 F.3d at 506; Canteen, supra, 103 F.3d at 1364.
13 Contrary to the Respondent’s argument in its answering brief,
there is no impediment to holding that the Respondent’s bargaining
obligation attached on March 2, notwithstanding that the transportation
services contract between the Respondent and the School District was
not approved until months later. See Nexeo, supra, 364 NLRB No. 44
(finding “perfectly clear” successor based on purchase agreement and
statements evincing intent to employ existing workforce made 5
months before sale was consummated); Elf Atochem, supra, 339 NLRB
796 (finding “perfectly clear” successor status based on letter of intent
to purchase predecessor and statements promising to employ existing
work force made 4 months before sale was consummated); Spitzer
Akron, Inc. v. NLRB, 540 F.2d 841, 843–845 (6th Cir. 1976) (finding
that it was “perfectly clear” in early August that the successor intended
to rehire a sufficient number of employees to maintain the union’s
FIRST STUDENT INC., A DIVISION OF FIRST GROUP AMERICA 5
For the reasons set forth above, we find that the Gen-
eral Counsel has met his burden of proving that the Re-
spondent became a “perfectly clear” successor, with an
obligation to bargain over initial terms, on March 2,
when it first expressed an intent to retain the predeces-
sor’s employees without clearly announcing an intent to
establish different initial terms of employment. The Re-
spondent therefore violated Section 8(a)(5) and (1) of the
Act by announcing and implementing unilateral changes
in the unit employees’ terms and conditions of employ-
ment on and after May 17, 2012.
AMENDED CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. At least from August 27, 2010, to June 5, 2013, the
United Steel, Paper, and Forestry, Rubber, Manufactur-
ing, Energy, Allied Industrial and Service Workers Inter-
national Union (USW), AFL–CIO and Local 8410, the
United Steel, Paper, and Forestry, Rubber, Manufactur-
ing, Energy, Allied Industrial and Service Workers Inter-
national Union (USW), AFL–CIO was the exclusive bar-
gaining representative of the following appropriate unit:
All full-time and regular part-time drivers and monitors
employed by First Student Inc., a Division of First
Group America at its Saginaw, Michigan location, but
excluding substitutes and temporary drivers and moni-
tors, dispatchers, confidential employees and supervi-
sors as defined in the Act.
3. Since June 5, 2013, the United Steel, Paper, and
Forestry, Rubber, Manufacturing, Energy, Allied Indus-
trial and Service Workers International Union (USW),
AFL–CIO and Local 9036, the United Steel, Paper, and
Forestry, Rubber, Manufacturing, Energy, Allied Indus-
trial and Service Workers International Union (USW),
AFL–CIO (the Union) has been the exclusive representa-
tive of the employees in the above-described appropriate
unit, for the purposes of collective bargaining with re-
spect to wages, rates of pay, hours of employment, and
other terms and conditions of employment.

majority status, even though the purchase of assets was not consum-
mated until September; in those circumstances, moreover, “a duty to
bargain . . . preceded the formal rehiring” of employees), enfg. 219
NLRB 20 (1975).
Even assuming, moreover, that no bargaining obligation could arise
until after the Respondent’s contract was approved, we would find that
the Respondent became a “perfectly clear” successor on May 16, when
it reiterated its previously expressed intent to retain the predecessor’s
employees without simultaneously clearly announcing an intent to
establish different initial terms of employment. See, e.g., Elf Atochem
North America, supra, 339 NLRB at 796; Canteen, supra, 317 NLRB at
1052–1053.
4. The Respondent, a “perfectly clear” successor em-
ployer to the Saginaw School District, violated Section
8(a)(5) and (1) of the Act on May 17, 2012, by unilater-
ally changing the terms and conditions of initial em-
ployment for bargaining unit employees, including their
rate of pay and guaranteed hours, without first notifying
the Union and giving it an opportunity to bargain.
5. By unilaterally implementing attendance policies on
August 27, 2012, and September 4, 2012, without first
notifying the Union and giving it an opportunity to bar-
gain, the Respondent violated Section 8(a)(5) and (1) of
the Act.
6. By conditioning bargaining on the Union’s with-
drawal of an unfair labor practice charge, the Respondent
violated Section 8(a)(5) and (1) of the Act.
7. By delaying bargaining from August 17, 2012 to
October 17, 2012, the Respondent violated Section
8(a)(5) and (1) of the Act.
8. The above unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
AMENDED REMEDY
We amend the judge’s proposed remedy to address the
additional Section 8(a)(5) and (1) violations that we have
found. Having found that the Respondent is a “perfectly
clear” successor to the School District and that it violated
Section 8(a)(5) and (1) of the Act by failing to bargain
with the Union to agreement or impasse prior to chang-
ing existing terms and conditions of employment for the
unit employees, we shall require the Respondent, on re-
quest by the Union, to retroactively restore the terms and
conditions of employment established by its predecessor
and rescind the unilateral changes it has made. The Re-
spondent shall also be required to make employees whole
for any loss of wages or other benefits they suffered as a
result of the Respondent’s unilateral changes in the man-
ner set forth in Ogle Protection Service, 183 NLRB 682
(1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest
as prescribed in New Horizons, 283 NLRB 1173 (1987),
compounded daily as prescribed in Kentucky River Medi-
cal Center, 356 NLRB 6 (2010).
In addition, we shall order the Respondent to remit all
payments it owes to employee benefit funds, including
any additional amounts due the funds on behalf of the
unit employees in accordance with Merryweather Opti-
cal Co., 240 NLRB 1213 (1979). Further, the Respond-
ent shall be required to reimburse unit employees for any
expenses ensuing from its failure to make the required
contributions, as set forth in Kraft Plumbing & Heating,
252 NLRB 891 fn. 2 (1980), enfd. mem. 661 F.2d 940
(9th Cir. 1981), such amounts to be computed in the
manner set forth in Ogle Protection Service, supra, with
interest as prescribed in New Horizons, supra, com-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
pounded daily as prescribed in Kentucky River Medical
Center, supra.
Finally, the Respondent shall be required to compen-
sate affected employees for the adverse tax consequenc-
es, if any, of receiving lump-sum backpay awards, and
file with the Regional Director for Region 7, within 21
days of the date the amount of backpay is fixed, either by
agreement or Board order, a report allocating the back-
pay awards to the appropriate calendar years for each
employee. AdvoServ of New Jersey, Inc., 363 NLRB No.
143 (2016).
ORDER
The National Labor Relations Board orders that the
Respondent, First Student, Inc., A Division of First
Group America, Saginaw, Michigan, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain in good faith with
the United Steel, Paper, and Forestry, Rubber, Manufac-
turing, Energy, Allied Industrial and Service Workers
International Union (USW), AFL–CIO and Local 8410,
USW, AFL–CIO, and with the USW and Local 9036,
USW, AFL–CIO (altogether, the Union), in the follow-
ing appropriate unit, by changing the terms and condi-
tions of employment of unit employees, including their
rate of pay and guaranteed hours, benefits, and attend-
ance policies, without first providing notice to and bar-
gaining in good faith with the Union to agreement or to
impasse. The bargaining unit is:
All full-time and regular part-time drivers and monitors
employed by First Student Inc., a Division of First
Group America at its Saginaw, Michigan location, but
excluding substitutes and temporary drivers and moni-
tors, dispatchers, confidential employees and supervi-
sors as defined in the Act.
(b) Conditioning bargaining on the Union’s withdraw-
al of an unfair labor practice charge.
(c) Delaying the commencement of bargaining with
the Union.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Before implementing any changes in the bargaining
unit employees’ wages, hours, or other terms and condi-
tions of employment, notify and, on request, bargain with
the Union as the exclusive collective-bargaining repre-
sentative of employees in the bargaining unit described
above.
(b) To the extent it has not already done so, on request
by the Union, rescind any changes in the terms and con-
ditions of employment for the unit employees that were
unlawfully unilaterally implemented on and after May
17, 2012, including but not limited to the changes to unit
employees’ rates of pay, guaranteed hours, benefits, and
attendance requirements.
(c) Make the unit employees whole, with interest, for
any losses sustained as a result of the unilateral changes
in terms and conditions of employment in the manner set
forth in the remedy section of the judge’s decision as
amended in this decision.
(d) Compensate affected employees for the adverse tax
consequences, if any, of receiving lump-sum backpay
awards, and file with the Regional Director for Region 7,
within 21 days of the date the amount of backpay is
fixed, either by agreement or Board order, a report allo-
cating the backpay awards to the appropriate calendar
years for each employee.
(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(f) Within 14 days after service by the Region, post at
its Saginaw, Michigan, facility copies of the attached
notice marked “Appendix.”14 Copies of the notice, on
forms provided by the Regional Director for Region 7,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent custom-
arily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone
out of business or closed the facility involved in this pro-
ceeding, the Respondent shall duplicate and mail, at its

14 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.”
FIRST STUDENT INC., A DIVISION OF FIRST GROUP AMERICA 7
own expense, a copy of the notice to all current employ-
ees and former employees employed by the Respondent
at any time since May 17, 2012.
(g) Within 21 days after service by the Region, file
with the Regional Director for Region 7 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. February 6, 2018
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
CHAIRMAN KAPLAN, dissenting in part.
Contrary to my colleagues, I would affirm the judge’s
finding that Respondent First Student Inc. was not a
“perfectly clear” successor to the Saginaw, Michigan
School District (School District), its predecessor. As the
judge found, the Respondent gave the School District’s
employees notice of different initial employment terms
on May 17, 2012, which was more than a month before
the Respondent extended employment offers to the
School District’s employees. Therefore, under the stand-
ards set forth in Spruce Up Corp., 209 NLRB 194
(1974), enfd. 529 F.2d 516 (4th Cir. 1975), the Respond-
ent had the right under Burns to implement initial em-
ployment terms without consulting or bargaining with
the predecessor’s union. Accordingly, although I agree
with other aspects of my colleagues’ decision,1 I respect-
fully dissent from their finding that the Respondent vio-
lated Section 8(a)(5) and (1) of the National Labor Rela-
tions Act (NLRA or Act) by unilaterally implementing
initial employment terms that differed from the employ-
ment terms of its predecessor.
Further, to the extent that my colleagues’ analysis in
this case relies on Creative Vision Resources, LLC, 364
NLRB No. 91 (2016), enfd. 872 F.3d 274 (5th Circ.

1 The facts regarding the Union’s requests to bargain and the Re-
spondent’s delayed response to those requests are recounted in full in
the judge’s decision and more briefly in my colleagues’ opinion. I
agree with my colleagues and the judge that, once it was obligated to
bargain, the Respondent violated the Act by delaying the commence-
ment of negotiations. I also agree with my colleagues that the Re-
spondent violated the Act by conditioning the commencement of nego-
tiations on the Union’s withdrawal of an unfair labor practice charge
and by unilaterally implementing, and unilaterally revising, an attend-
ance policy.
2017), Nexeo Solutions, LLC, 364 NLRB No. 44 (2016),
and Canteen Co., 317 NLRB 1052 (1995), enfd. 103
F.3d 1355 (7th Cir. 1997), and the interpretations of
Spruce Up articulated therein, I note that I do not believe
that those cases were correctly decided. Specifically, I
do not agree that “perfectly clear” successorship attaches
if and when “a successor expresses an intent to retain the
predecessor’s employees without making it clear that
employment will be conditioned on the acceptance of
new terms.” Nexeo, 364 NLRB No. 44, slip op. at 6 (cit-
ing Canteen Co., 317 NLRB at 1053–1054) (emphasis
added). The “expresses an intent” standard cannot be
reconciled with the principles of successorship set forth
in Burns,2 Fall River Dyeing,3 and their progeny. How-
ever, in the absence of a Board majority to overrule
Nexeo, Canteen, and Creative Vision, I agree for institu-
tional purposes that that precedent is applicable here.
Dated, Washington, D.C. February 6, 2018
______________________________________
Marvin E. Kaplan, Chairman
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
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT refuse to bargain in good faith with the
United Steel, Paper, and Forestry, Rubber, Manufactur-
ing, Energy, Allied Industrial and Service Workers Inter-
national Union (USW), AFL–CIO and Local 8410,
USW, AFL–CIO, and with the USW and Local 9036,
USW, AFL–CIO (altogether, the Union) in the following

2 NLRB v. Burns International Security Services, 406 U.S. 272
(1974).
3 Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27 (1987).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
appropriate unit by unilaterally changing your terms and
conditions of employment, including but not limited to
changes to your wages, your guaranteed hours, benefits,
and attendance policies, without first providing the Un-
ion with notice and an opportunity to bargain. The bar-
gaining unit is:
All full-time and regular part-time drivers and monitors
employed by First Student Inc., a Division of First
Group America at its Saginaw, Michigan location, but
excluding substitutes and temporary drivers and moni-
tors, dispatchers, confidential employees and supervi-
sors as defined in the Act.
WE WILL NOT condition bargaining on the Union’s
withdrawal of an unfair labor practice charge.
WE WILL NOT delay the commencement of bargaining
with the Union.
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, before implementing any changes in wages,
hours, or other terms and conditions of your employ-
ment, notify, and on request, bargain with the Union as
your exclusive collective-bargaining representative.
WE WILL, to the extent we have not already done so, on
request by the Union, rescind any changes in the terms
and conditions of employment for the unit employees
that we unlawfully unilaterally implemented on and after
May 17, 2012, including, but not limited to, the changes
to our unit employees’ rates of pay, guaranteed hours,
benefits, and attendance requirements.
WE WILL make our unit employees whole for any loss-
es they sustained due to the unlawfully imposed changes
to their terms and conditions of employment, with inter-
est.
WE WILL compensate affected employees for the ad-
verse tax consequences, if any, of receiving lump-sum
backpay awards, and WE WILL file with the Regional Di-
rector for Region 7, within 21 days of the date the
amount of backpay is fixed, either by agreement or
Board order, a report allocating the backpay awards to
the appropriate calendar years for each employee.
FIRST STUDENT, INC., A DIVISION OF FIRST
GROUP AMERICA
The Board’s decision can be found at
www.nlrb.gov/case/07-CA-092212 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 DC 20570, or by
calling (202) 273–1940.
Jennifer Brazeal, Esq. for the General Counsel.
David Kadela and Erik Hult, Esqs. for the Respondent.
Emma Rebhorn and Stuart Israel, Esqs. for the Charging Party.
DECISION
STATEMENT OF THE CASE
MARK CARISSIMI, Administrative Law Judge. This case was
tried in Saginaw, Michigan, on July 24–26, 2013. Local 9036,
United Steel, Paper and Forestry, Rubber, Manufacturing, En-
ergy, Allied Industrial and Service Workers International Union
(USW) AFL–CIO (Local 9036), filed the charge on October 29,
2012, and the Acting General Counsel issued the complaint on
April 30, 2013.
On the entire record, including my observation of the de-
meanor of the witnesses,1 and after considering the briefs filed
by the General Counsel, the Charging Party, and the Respond-
ent I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, with offices and places of
business within the State of Michigan, including Saginaw (the
Respondent’s Saginaw facility) has been engaged in the busi-
ness of providing student transportation. Annually, the Re-
spondent, in conducting its business operations described
above, derives gross revenues in excess of $250,000. During
this same period of time, the Respondent purchased and re-
ceived at its Michigan facilities goods valued in excess of
$5000 directly from points located outside the State of Michi-
gan.
The Respondent admits, and I find, that it is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
As amended at the hearing paragraph 8 of the complaint al-

1 In making my findings regarding the credibility of witnesses, I
considered their demeanor, the content of the testimony, and the inher-
ent probabilities based on the record as a whole. In certain instances, I
credited some but not all, of what the witness said. I note, in this regard,
that “nothing is more common in all kinds of judicial decisions than to
believe some and not all” of the testimony of a witness. Jerry Ryce
Builders, 352 NLRB 1262 fn. 2 (2008), citing NLRB v. Universal Cam-
era Corp., 179 F.2d 749, 754 (2d Cir. 1950), revd. on other grounds
340 U.S. 474 (1951). See also J. Shaw Associates, LLC, 349 NLRB
939, 939-940 (2007).
FIRST STUDENT INC., A DIVISION OF FIRST GROUP AMERICA 9
leges that since 1981 through June 2013, the Saginaw School
District (School District) recognized the United Steel Workers
International Union (USW) and USW, Local 8410 as the col-
lective-bargaining representative of the following employees:
All regular full-time and regular part-time hourly rated bus
drivers and bus assistants employed by the Board of Educa-
tion of the city of Saginaw, but excluding substitutes and tem-
porary drivers and bus assistants, dispatchers, supervisors,
confidential employees, and all other employees.
Paragraph 8 of the complaint also alleges that this recogni-
tion has been embodied in a series of collective-bargaining
agreements with the School District, the most recent of which
by its terms was to be effective from August 27, 2010, to Au-
gust 31, 2012. Paragraph 8 of the complaint further alleges that
since June 2013 the USW designated USW, Local 9036 to rep-
resent the employees in the unit described above, along with the
USW. (GC Exh. 19.)
In his posthearing brief the General Counsel2 moves to
amend paragraph 9(b) of the complaint to allege “From about
February 19, 1981 through June 2013 Local 8410, a USW affil-
iate and USW were the exclusive collective bargaining repre-
sentatives of the unit employed by Respondent. Since June
2013, Local 9036, a USW affiliate and USW were the exclu-
sive collective bargaining representatives of the unit employed
by Respondent.” The General Counsel further moved to amend
paragraph 9(c) of the complaint to allege “During the relevant
time periods described in paragraph 9(b), USW, Local 8410,
and Local 9036, based on Section 9(a) the Act have been the
exclusive collective bargaining representatives of the Unit em-
ployed by Respondent.” (GC brief at 3 fn. 2.) The General
Counsel asserts that, as originally pled, paragraphs 9(b) and(c)
are inconsistent with the amendment made at the hearing to
paragraph 8.3 The General Counsel further contends that the
amendment to paragraph 9 conforms to the evidence presented
in the case.
The Respondent objected to the amendment to the complaint
made at the trial and further objects to the post and complaint
amendment. For reasons which I will explain in detail herein, I
granted the amendments made at the hearing and I also grant
the amendment made in the General Counsel’s brief.
The complaint alleges in paragraph 6 that since about June 1,
2012, the Respondent contracted with the School District to
provide student transportation services and since that time has
continued to provide those services in basically unchanged
form and has employed as majority of its employees individuals
who were previously employees of the School District. Para-
graph 6 of the complaint further alleges that the Respondent is a
successor to the School District.
Paragraph 13 of the complaint alleges that on or about May

2 I have taken administrative notice of the fact that on October 29,
2013, the United States Senate confirmed President Obama’s nomina-
tion of Richard F. Griffin Jr., to be the Board’s General Counsel and
that he was sworn in on November 4, 2013.
3 As originally pled, paras. 9(b) and (c) allege that since about June
1, 2012, Local 9036, has been the exclusive bargaining representative
of the unit employees.
17, 2012, the Respondent implemented changes in the wages,
hours, and other working conditions of unit employees. The
complaint also alleges that on August 27, 2012, the Respondent
implemented a new employee attendance policy. The complaint
alleges that these changes were implemented unilaterally and
therefore violate Section 8(a)(5) and (1) of the Act. The com-
plaint also alleges that on or about May 17, 2012, the Respond-
ent bypassed the Union and dealt directly with employees in the
Unit in violation of Section 8(a)(5) and (1). The General Coun-
sel’s theory regarding the complaint allegations relating to May
17, 2012, is that the Respondent engaged in conduct that made
it “perfectly clear” that it planned to retain all of the employees
in the unit and therefore had an obligation to initially consult
with the employees’ bargaining representative before establish-
ing terms and conditions of employment. In support of this
theory, the General Counsel relies on inter alia, NLRB v. Burns
International Security Services, 406 U.S. 272, 294–295 (1972)
and Spruce Up Corp., 209 NLRB 194, 195 (1974), enfd. mem.
529 F.2d 516 (4th Cir.1975).
The complaint further alleges that the Respondent unreason-
ably delayed bargaining from May 18, 2012, to October 15,
2012, in violation of Section 8(a)(5) and (1). Finally, the com-
plaint alleges that on about October 1, 2012 the Respondent
insisted on the withdrawal of an unfair labor practice charge as
a condition to engaging in bargaining in violation of Section
8(a)(5) and (1).
The Respondent admits that it is a successor employer to the
School District but denies that it is a “perfectly clear” successor
within the meaning of Burns and Spruce Up, supra, and further
denies that it committed any of the alleged unfair labor practic-
es.
The Amendments to the Complaint
Section 102.17 of the Board’s Rules and Regulations permits
complaint amendments upon terms that may be just. The Board
evaluates the following factors in determining whether to grant
an amendment to the complaint: (1) whether there was surprise
or lack of notice, (2) whether the General Counsel offered a
valid excuse for the delay in moving to amend, and (3) whether
the matter was fully litigated. Stagehands Referral Service,
LLC, 347 NLRB 1167, 1171 (2006); Cab Associates, 340
NLRB 1391, 1397 (2003).
In the instant case, on July 19, 2013, 5 days prior to the
commencement of the trial, the Respondent filed an amended
answer denying the portions of the complaint in paragraphs 8
and 9, alleging that Local 9036 was designated representative
of the unit employees from 1981 until the present. At the hear-
ing, as noted above, the General Counsel amended paragraph 8
during the case in chief. This amendment was consistent with
the evidence presented on this issue. In particular, the collec-
tive-bargaining agreement effective August 27, 2010, through
August 31, 2012, indicates that it is “between the Board of
Education of the City of Saginaw and United Steel Workers,
AFL–CIO–CLC, on behalf of Local 8410-01, (hereinafter re-
ferred to as the “Union”).” (GC Exh. 2.) The signature page of
that document reflects that it was executed by representatives of
both the United Steel Workers International Union (USW) and
Local 8410-01. Before the General Counsel rested, significant
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
additional evidence was presented as to how and when the rep-
resentation of unit employees was transferred by the USW from
the jurisdiction of Local 8410 to that of Local 9036. According-
ly, it is clear that the Respondent had a fair opportunity to de-
fend itself against paragraph 8 of the complaint as amended and
that it was appropriate to grant the amendment to the complaint.
With respect to the General Counsel’s motion to amend par-
agraph 9 of the complaint contained in his brief, the Respond-
ent contends that it should be denied under the standards of
Stagehands Referral Service and Cab Associates, supra. With
regard to the first factor, the amendment made in the General
Counsel’s brief could hardly be surprising to the Respondent as
it merely made the allegations of paragraph 8 and 9 consistent
with each other. With respect to the second factor, the General
Counsel admits it was an oversight not to have made the
amendment to paragraph 9 at the hearing. While it would have
been preferable for the General Counsel to have made the
amendments to paragraph 9 at the hearing, I do not find that
moving to amend paragraph 9 in the brief prejudiced the Re-
spondent as I have carefully considered the Respondent’s
memorandum in opposition to the General Counsel’s motion.
Finally, as noted above, the issue of the representative status of
the USW, Local 8410 and Local 9036 was extensively litigated
at the hearing. Accordingly, I find it appropriate to grant the
amendment to paragraph 9 of the complaint.
The Respondent has denied the substantive allegations in the
amended complaint regarding the representative status of the
USW, Local 8410 and Local 9036.
The Representative Status of the USW, Local 8410 and
Local 9036
Although the complaint as amended alleges that the School
District and the USW and Local 8410 have had a collective-
bargaining relationship since 1981, the General Counsel pro-
duced no evidence regarding the bargaining history prior to
2010. As noted above, the 2010–2012 collective-bargaining
agreement is between the School District and the “United
Steelworkers, AFL–CIO–CLC on behalf of Local 8410-01,
(hereinafter referred to as the “Union”). Also, as noted above,
the signature page of collective-bargaining agreement reflects
the signatories as the Saginaw Board of Education, the USW,
and Local 8410-01. The record establishes that there were ap-
proximately 55 employees in the unit.
The Board has held that when an international union and its
affiliated local union are signatories to a collective-bargaining
agreement, both the international union and its affiliated local
are joint representatives of the employees covered by the col-
lective-bargaining agreement. BASF-Wyandotte Corp., 276
NLRB 498, 504–505 (1985). Accordingly, based on the con-
tract between the School District and the USW and Local 8410,
I find that the USW and Local 8410 were the joint representa-
tives of the employees in the unit from at least August 27,
2010, until the unit employees were transferred to the jurisdic-
tion of Loca1 9036 in June 2013.
The USW constitution specifically permits the USW to
transfer all or part of the jurisdiction of a local union to another
local union (CP Exh. 3). According to the uncontroverted tes-
timony of USW Representative Tonya DeVore, Local 8410 is
an amalgamated local union that represents severed several
units. 8410-01 is the unit identifier for the employees in the unit
that was employed by the School District. When the Respond-
ent took over the operation of the bus services of the Saginaw
public schools in July 2012, the unit employees were no longer
public employees. In the fall of 2012, the USW began the pro-
cess of transferring the unit employees from Local 8410 to
Local 9036, which represents both public and private employ-
ees. The decision to transfer unit employees from Local 8410 to
Local 9036 was based primarily on the fact that the officials of
Local 8410 had no experience in preparing the necessary ad-
ministrative documents required of a union representing private
sector employees. Of particular concern to the Local 8410 offi-
cials was the LM-2 report that is required to be filed with the
U.S. Department of Labor pursuant to the Labor-Management
Reporting and Disclosure Act.
According to the uncontroverted and credited testimony of
DeVore and Clint Bryant, a current employee of the Respond-
ent,4 meetings were held with unit employees in October and
November 2012 regarding the transfer of the unit from Local
8410 to Local 9036. At the meeting held in October 2012, ap-
proximately 30 employees were present while approximately
25 employees attended the meeting in November. At these
meetings DeVore told employees that the officials of Local
8410 had concerns about their ability to fill out the paperwork
required of a union representing private sector employees. De-
Vore further indicated that Local 9036 represented both private
sector and public sector employees and she thought that Local
9036 would be a “better fit” for the unit employees since they
now worked for a private employer. The employees present at
the meetings had no objections to the transfer of their unit from
one local union to another.
On May 29, 2013, Michael Bolton, the director of USW Dis-
trict 2, wore a letter to Stan Johnson, the USW secretary-
treasurer formally requesting that, pursuant to the USW consti-
tution, the Respondent’s unit employees who had been formerly
been employed by the School District be transferred to Local
9036. The letter also indicated that DeVore would continue to
provide services to the unit employees. The letter further indi-
cated, in relevant part, that:
The reason for the request is that the members in the unit were
previously public school workers, and were outsourced to a
private sector firm. Amalgamated Local 8410 had no private
sector units prior to this change and the requested new unit
will be part of an amalgamated local with both private and
public units. Also the primary unit of Local 9036 is composed
of passenger bus drivers, and the new unit is composed of
school bus drivers.
On June 5, 2013, the USW transferred the Respondent unit
employees to Local 9036 (CP Exh. 4). On approximately June
5, 2013, DeVore, Bryant, and Jennifer Wirrick, the president of
Local 9036 attended a meeting with the unit employees of the

4 Bryant was formerly the unit president for Local 8410 and is pres-
ently the unit president for Local 9036. The unit president is the highest
ranking union official in the bargaining unit.
FIRST STUDENT INC., A DIVISION OF FIRST GROUP AMERICA 11
Respondent at the Saginaw facility’s bus garage. The unit em-
ployees were informed that Local 9036 would be their new
local and were asked to sign dues checkoff cards for Local
9036. Approximately 43 of the 45 employees present at the
meeting signed dues checkoff cards. As of the time of the hear-
ing those checkoff authorizations had not been provided to the
Respondent.
As I noted above, the Respondent admits that is a successor
to the School District with regard to bus transportation services
and began to bargain with the USW and Local 8410 in October
2012. DeVore is the chairperson of the Union’s negotiating
team. At a bargaining meeting held in approximately January or
February 2013, DeVore notified the Respondent’s chief repre-
sentative, Audrey Adams, that the local union number would be
changing because the employees were going from a local union
that represented solely public employees to a local union that
represented both public and private employees. The Respond-
ent did not indicate any objection to that procedure at the meet-
ing. From June 2013 until the hearing was held in July 2013
there were two additional bargaining meetings. None of the
Respondent’s representatives present at the meeting raised any
objection to the transfer of the unit employees from one local
union to another.
It is clear that USW representative DeVore was involved in
the affairs of the bargaining unit as it underwent the transition
from the School District to the Respondent. She was also deep-
ly involved in the transition of the unit from Local 8410 to
Local 9036. In addition, DeVore has been the chairperson of
the Union’s negotiating team since negotiations began with the
Respondent in October 2012, when local 8410 was the joint
representatives of the unit employees and continued in that role
after June 5, 2013, when the unit employees were transferred to
Local 9036. Such active participation by a USW representative
in the affairs of a local union establishes that since June 5,
2013, the USW and Local 9036 have been the joint representa-
tives of the unit employees. BASF-Wyandotte, supra at 505.
Based on the foregoing, I find that since at least August 27,
2010, until June 5, 2013, the USW and Local 8410 were the
joint representatives of the unit employees. Since June 5, 2013,
until the present the USW and Local 9036 have been the joint
representatives of the unit. In reaching this finding I rely on the
Board’s decision in Raymond F. Kravis Center for the Perform-
ing Arts, 351 NLRB 143 (2007). In that case, the Board indi-
cated that:
[W]hen there is a union merger or affiliation an employer’s
obligation to recognize and bargain with the incumbent union
continues unless the changes resulting from the merger or af-
filiation are so significant as to alter the identity of the bar-
gaining representative. Id. at 147.
It is the burden of the party seeking to avoid its bargaining
obligation to establish that the merger or affiliation resulted in a
change that is “sufficiently dramatic” to alter the union’s identi-
ty. Id. at 147.
It is clear that in the instant case the employer has not met
that burden. Based on the foregoing, there has been substantial
continuity in the representation of the unit by the USW and
Local 8410 before the transfer of the unit and the USW and
Local 9036 after the transfer of the unit. Accordingly, refer-
ences to the “Union” in this decision refer to the USW and
Local 8410 prior to June 5, 2013, and the USW and Local 9036
after June 5, 2013.
The Respondent’s Procedural Defenses
The Respondent contends in its brief that the complaint must
be dismissed pursuant to Section 10(b) or because Local 9036
did not represent the unit employees until over 7 months after it
filed its charge.
The charge was filed on October 29, 2012, by the “United
Steelworkers Local 9036” and alleges in substance that the
Respondent was a “Perfectly Clear successor to Saginaw Public
Schools” which unilaterally changed terms and conditions of
employment; delayed bargaining with the “Union” and condi-
tioned bargaining with the “Union” on the withdrawal of an
unfair labor practice charge in violation of Section 8(a)(5) and
(1). Listed on the charge was the fact that Local 9036 is affiliat-
ed with the “United Steelworkers.” The 10(b) period regarding
this charge commenced on April 29, 2012.
The fact that the charge was nominally filed by Local 9036
before it became the joint representative of the unit employees
along with the USW, is of no significance as it is clear that
“any person” may file a charge with the Board. Section 102.09
of the Board’s Rules and Regulations; Apex Investigation &
Security Co., 382 NLRB 815, 818 (1991).
Is also clear that a charge is not a pleading and does not re-
quire the specificity of a complaint. A charge merely initiates a
Board investigation to determine whether a complaint should
be issued. NLRB v. Fant Milling Co., 360 U.S. 301, 307 (1959).
The charge in the instant case notified the Respondent of the
substantive allegations set forth above and refers to the “Un-
ion.” As I set forth above, the “Union” until June 5, 2013, was
comprised of the USW and Local 8410 and after June 5, 2013,
was comprised of the USW and Local 9036. There has been
continuity of representation throughout the entire 10(b) as the
USW has always been one of the joint representatives of the
unit employees. The transfer of the unit from Local 8410 to
Local 9036 did not in any way change the continuity in repre-
sentation.
Is also clear that a complaint is not restricted to the precise
allegations of a charge. Rather, a complaint may allege any
matter sufficiently related to or growing out of the charged
conduct. Fant Milling, supra at 309. As originally issued, all of
the substantive allegations of the complaint were within the 6
month time period required by Section 10(b) but only made
reference to Local 9036 as the Section 9(a) representative of the
unit employees. However, as finally amended, the complaint
properly alleged the appropriate 9(a) representative as the USW
and Local 8410 until June 2013 and the USW and Local 9036
after June 2013. The specific addition of the USW and Local
8410 as the 9(a) representative during the appropriate time
period is closely related to the allegations of the charge under
the standards applied in Board’s decision in Redd-I, Inc. 290
NLRB 1115, 1115–1116 (1988). In this connection, the com-
plaint amendments involved the same legal theory as the charge
and arise from the same factual circumstances alleged in the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
charge. As I have discussed above in detail, the complaint was
amended in a manner that permitted the Respondent to ade-
quately defend itself against the amendments. Based on the
foregoing, I find no merit to the procedural defenses raised by
the Respondent and will address the merits of the amended
complaint.
Whether the Respondent is a “Perfectly Clear” Successor
Which Violated Section 8(a)(5) and (1) by Unilaterally Estab-
lishing Initial Terms and Conditions of Employment and
Directly Dealing with Employees
Facts
Background
The Respondent is headquartered in Cincinnati, Ohio, and is
the largest provider of school transportation services in the
North America. In the United States the Respondent employs
over 59,000 employees and transports approximately 6 million
students. In Michigan, the Respondent provides transportation
services in 18 school districts and operates approximately 1000
buses.
The July 2011 Meeting and Aftermath
In the summer of 2011 the School District issued a request
for proposals (RFP) seeking bids regarding the privatization of
its school transportation system. The Respondent and two other
entities submitted proposals. In July 2011, the School Dis-
trictconducted an interview with the Respondent regarding its
proposal. Representatives of the School District included Dr.
Kelley Peatross; the assistant superintendent of schools, Phoebe
Wood, the School District’s chief financial officer; and Robert
Bradley, the School District’s then facilities manager. The Re-
spondent’s development manager Daniel Kinsley and another
manager, Justin Grygiel, attended for the Respondent. At the
invitation of Peatross, USW representative DeVore was present
at the interview. No unit employees were present at this inter-
view.
Peatross and DeVore testified regarding this meeting on be-
half of the General Counsel, while Kinsley and Bradley testi-
fied on behalf of the Respondent. For the most part, there was
not much of a much variance in the testimony of the witnesses
regarding this meeting. Based on a composite of their testimo-
ny, I find that Kinsley stated that the Respondent would hire the
bargaining unit employees if they met the Respondent’s hiring
criteria which included an application, an interview, a back-
ground check, a drug screen, and some other tests. Kinsley
stated that the Respondent would maintain the current wages
and planned to raise wages in the future. When Kinsley was
asked whether the Respondent would recognize the Union, he
indicated that the Respondent would recognize the Union if it
hired 51 percent or more of the School District’s employees.5
Kinsley further indicated that it was the Respondent’s intention

5 Kinsley, Bradley, and Peatross all testified that Kingsley answered
the question about recognizing the Union in the same manner. DeVore
testified that when asked if the Respondent would recognize the union,
Kinsley answered “yes” without any further qualification. I do not
credit DeVore’s testimony on this point as it conflicts with that of Brad-
ley and Peatross, who I view as neutral witnesses.
to hire a majority of the School District’s employees if they met
the Respondent’s hiring protocols. Kinsley also stated that at
other locations the Respondent had hired 80 to 90 percent of the
existing unit.
After the meeting, Woods prepared two documents summa-
rizing the proposal made by the Respondent and the two other
entities that had submitted proposals (GC Exh. 3 and CP Exh.
2). They are very similar but not identical documents. The
summaries were provided to employees by the School District
and were made available to the public at Board of Education
meetings. Peatross gave a copy of Charging Party Exhibit 2 to
DeVore.
Both the General Counsel and the Charging Party contend
that these exhibits are probative but I find them to be of mini-
mal value. The documents are Wood’s summary of what each
entity stated during their individual interviews. The accuracy of
the summaries is questionable. For example, with respect to the
summary involving the Respondent in General Counsel Exhibit
3, under the heading “Union” the document indicates “Will
recognize union.” Under the same heading, CP Exh. 2 states
“The union will be recognized.” Peatross testified on direct
examination that the summaries accurately reflected what the
Respondent’s representatives stated at the meeting (Tr. 358).
On cross-examination, however, Peatross testified that with
respect to the portion of the summary in GC Exh. 3 that states
“Will recognize union” it was her understanding that would
occur on the condition of the Respondent hiring a majority of
the School District’s employees (Tr. 378). As noted above,
Peatross also testified that she recalled that the Respondent’s
representatives stated at the meeting that after hiring the majori-
ty of the existing work force, it would recognize the union (Tr.
377). Thus, Peatross’ testimony regarding the accuracy of the
summary was equivocal and conflicts with her testimony that at
the meeting the Kinsley stated that the Respondent would rec-
ognize the union if it hired a majority of the School District’s
employees. In addition, Kinsley testified that the summaries
were missing important qualifications on relevant topics. For
example, Kinsley testified that with regard to the reference to
the recognition of the Union in General Counsel Exhibit 3 the
summary was missing the qualifier that he stated at the meeting
that the Respondent would recognize the Union if it hired 51
percent or more of the School District’s employees (Tr. 474).
Since Kinsley’s testimony on what he said at the meeting is
corroborated by both that of Peatross and Bradley, I find his
testimony that the summaries were not entirely accurate to be
credible.
Under these circumstances, I find that the summaries pre-
pared by Woods are not complete statements of what the Re-
spondent stated at the meeting. I find these documents to be too
unreliable to base any findings on them.
In October 2011, the School District selected the Respondent
as a provider of its bus services and the School Board voted to
approve a contract. However, Dr. Carleton Jenkins, the School
District’s superintendent, decided not to proceed with subcon-
tracting bus services at that time. In November 2011, the
School District withdrew its RFP and notified the Respondent
that it would not proceed with subcontracting bus services dur-
ing the 2011–2012 school year.
FIRST STUDENT INC., A DIVISION OF FIRST GROUP AMERICA 13
The March 2, 2012 Meeting
Pursuant to a new RFP issued by the School District regard-
ing the subcontracting of school bus transportation for the
2012–2013 school year, on February 3, 2012, the Respondent
submitted a new proposal to the School District. The Board of
Education again approved entering into negotiations with the
Respondent for a contract. While those negotiations were ongo-
ing, Peatross arranged for a meeting between the Respondent’s
representatives and School District employees that was held on
March 2, 2012, at the School District’s transportation facility.
All of the School District’ s unit employees were invited to
attend the meeting and approximately 40 attended. Peatross
attended for the School District. Robert Bradley also attended
the meeting. At the time of the meeting Bradley was the general
manager for Sodexo, which, pursuant to a contract, provided
custodial and maintenance services to the School District. Prior
to going to work for Sodexo in September 2011, Bradley had
been employed by the School District as the operations manag-
er for those functions. Attending for the Respondent were Kins-
ley and the Respondent’s area general manager, Douglas Meek.
Peatross and current unit employees Millie Stidhum-Stewart
and Michelle Ezell, testified on behalf of the General Counsel
regarding this meeting. Bradley, Meek, and Kinsley testified on
behalf of the Respondent.
According to Peatross, the purpose of the meeting was to
discuss the transition of the school bus services from the School
District to the Respondent and to allow the employees to ask
questions they may have. Peatross introduced Kinsley and
Meek to the assembled employees. The Respondent’s primary
spokesman, Meek, spoke about what the employees could ex-
pect in the upcoming weeks in anticipation of a final contract
being reached between the School District and the Respondent.
Meek testified that he told the employees that they would be
receiving an application form at a future meeting if a contract
was reached between the Respondent and the school district.
He stressed that the application had to be filled out completely.
Meek indicated that he and another one of the Respondent’s
managers would be present to answer questions when the em-
ployees receive their application. Meek stated that after the
completion of the application and the necessary background
checks, applicants would be subject to a preemployment drug
screen, a physical examination and receive training. Meek stat-
ed that after completion of these requirements the Respondent
would offer employment to existing employees who met their
criteria.
After Meek’s initial presentation, employees were permitted
to ask questions. When asked how many employees would be
hired, Meek indicated that in a conversion between a public
school transportation system and the Respondent’s operation,
the Respondent typically hired 80 to 90 percent of the existing
work force. Meek testified that he told the employees that if the
workforce was represented and the Respondent hired 51 per-
cent of the existing work force as its own, the employees would
bring their representation with them and a new contract would
be negotiated.
When asked about how many hours were going to be guaran-
teed to employees, Meek responded that the Respondent would
use the School District’s routing system but that the Respond-
ent did not know how many hours would be worked at that
time. He indicated that the Respondent would no more when
the routes were established. In response to other questions re-
garding the conditions employees would work under if hired by
the Respondent, Meek stated that those issues would be subject
to negotiations.
Kinsley testified that Meek stated that the applications for
employment would have to be complete and that employees
who applied for work with the Respondent would be subject to
a background check, a dexterity test, a drug screen and receive
training. According to Kinsley, Meek said that if the Respond-
ent hired 51 percent or more of the current work force, the Re-
spondent would bargain in good faith regarding new terms and
conditions of employment. Kinsley further indicated that ques-
tions were posed to Meek regarding issues such as paid time
off, vacation pay and sick pay and that Meek responded by
saying those items would be subject to negotiations.
Bradley, who testified pursuant to a subpoena issued by the
Respondent, recalled that employees asked questions about the
number of hours they would work. According to Bradley, Meek
explained that until the routes were determined, the Respondent
would not know the number of hours that would be worked by
employees. While Bradley did not recall the specific subjects
that were raised by employees, he recalled Meek stating that
certain matters would be subject to negotiations.
Peatross testified that in response to a question by an em-
ployee, Meek stated that the Respondent would recognize the
Union if it hired 50 percent plus one of the School District’s
employees as its employees. Peatross also recalled that Meek
did not make any commitment to the number of hours the em-
ployees would work but stated that the Respondent would have
to look at the routes in order to determine the hours that would
be provided to employees. While Peatross did not recall the
specific topics that were raised by employees, she recalled
Meek stating that certain subjects would be subject to negotia-
tions.
Stidhum-Stewart testified that Meek was present along at the
meeting along with the Respondent’s human resources manager
Frederick Kellerman. Stidhum-Stewart further testified that
“another guy” and a “lady” attended the meeting for the Re-
spondent. According to Stidhum-Stewart, in response to a ques-
tion from an employee as to whether the Respondent would
recognize the Union, Meek responded that the Respondent
would recognize the Union if it hired 50 percent plus one of the
current employees. Stidhum-Stewart also testified that, in re-
sponse to questions from employees, Meek said the duties of
the unit employees would remain the same as would the wages
and benefits.
Michelle Ezell testified that Meek, Kinsley, and Kellerman
were at the meeting for the Respondent. Ezell also recalled that
Meek responded to questions about recognizing the Union by
saying that the Respondent would do so if it hired 50 percent
plus one of the current employees. According to Ezell, Meek
said that there was going to be a smooth transition and that the
Respondent would “honor or our contract,” go by seniority and
that their insurance would be cheaper. Ezell could not recall
near the specific issues that were raised by employees.
I find the testimony of Meek to be the most reliable account
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
of this meeting and I credit the portion of his testimony set
forth above. It is detailed and consistent and it is corroborated
in important respects by the testimony of Peatross, Kinsley, and
Bradley. I do not credit the testimony of Stidhum-Stewart and
Ezell to the extent it conflicts with that of Meek. In the first
instance, both Stidhum-Stewart and Ezell place Kellerman at
this meeting when the record clearly establishes that the first
time that Kellerman met with employees occurred on May 17,
2013. The testimony of Stidhum-Steward and Ezell did not
have much detail and their demeanor while testifying reflected
a lack of certainty. In addition, the testimony of Stidhum-
Stewart and Ezell was not corroborated by the testimony of
Peatross, who also testified on behalf of the General Counsel.
The May 16, 2012 Board of Education Meeting
The representatives of the School District and the Respond-
ent agreed on the terms of a transportation services contract in
early May 2012. At the Board of Education’s regularly sched-
uled, public May 16, 2012 meeting, one of the items on the
agenda was the approval of the terms of the contract between
the Respondent and the School District. Prior to the meeting
Peatross advised DeVore that the proposed contract was on the
agenda. Peatross also advised Kinsley of that fact and invited
him to attend the meeting. Kinsley, DeVore, Bryant, and ap-
proximately five other bargaining unit employees attended the
meeting, along with members of the public.
Bryant, DeVore, and Peatross testified on behalf of the Gen-
eral Counsel regarding this meeting, while Kinsley and Bradley
testified for the Respondent.
Bryant testified that at the at the meeting one of the members
of the Board of Education asked School District Superintendent
Jenkins what the wages of the employees would be if the if the
Respondent operated the transportation services. Jenkins re-
ferred the question to Bradley who, in turn, referred the ques-
tion to Kinsley. Kinsley took the podium to answer and stated
that employees would maintain their current wages. Another
board member asked if the Respondent intended to hire the
current employees employed by the School District. Kinsley
said that much like the school district, employees would have to
go through a background check, a drug screen, and pass a phys-
ical. Kinsley stated that f the employees met those prerequisites
they would be hired. DeVore asked Kinsley if the Respondent
would recognize the Union. Since, according to the rules of the
meeting, only board members could ask questions, a board
member then asked Kinsley if the Respondent would do so.
Kingsley responded that the Respondent would recognize the
Union. According to Bryant, Kingsley did not identify any
conditions of employment that may change during the meeting.
DeVore testified that when Kinsley was asked by a board
member about hiring the School District’s employees, he re-
sponded that if the employees met the Respondent’s hiring
practices, it would hire them. He further indicated that the hir-
ing practices consisted of having a commercial driver’s license
(CDL), undergoing a background check, a drug screen, and a
physical. He added that those requirements “would not be a
problem.” According to DeVore, when Kinsley was asked
about wages he stated that “everything would be the same.”
Peatross also testified that Kinsley answered questions at the
meeting that were posed by members of the School Board.
According to Peatross, Kinsley said that the Respondent would
offer positions to the existing employees who satisfied the Re-
spondent’s hiring requirements such as background checks and
physical exams. In response to a question about the wages that
the Respondent would offer, Kinsley replied that the Respond-
ent would hire current district employees at the same rate of
pay. When asked if the Respondent would recognize the Union,
Peatross testified that Kinsley stated that the Respondent would
recognize the Union upon hiring 51 percent of the employees.
Kinsley confirmed that he was asked questions by board
members at the meeting. With respect to a question regarding
whether the Respondent would recognize the Union, he re-
sponded that the Respondent would recognize the Union if it
hired 51 percent or more of the existing work force. With re-
gard to the Respondent’s hiring process, Kinsley testified that
he indicated that employees would have to submit applications,
have background checks and drug screens conducted, be inter-
viewed, and perform dexterity tests. When asked what the wag-
es would be, Kinsley stated that the Respondent intended to
maintain the wages for the current work force. He denied say-
ing that “everything would remain the same.” Kinsley testified
that he did not say what terms and conditions would change
when the former School District employees became the Re-
spondent’s employees because that was not a question he was
asked.
Bradley testified that Kinsley was asked a question at the
meeting about whether the Respondent would recognize the
Union. According to Bradley, Kinsley stated that if the Re-
spondent hired 51 percent of the employees they would have to
recognize the Union. When asked whether the Respondent
would hire the existing employees, Kinsley answered that they
would offer all of the employees a position as long as they
completed the process involving the background checks, the
physical examination, and drug screens.
I credit the testimony of Kinsley, Peatross, and Bradley to
the extent that it conflicts with that of DeVore and Bryant. The
testimony of Kinsley, Peatross, and Bradley is mutually cor-
roborative and Peatross and Bradley are neutral witnesses. The
demeanor of all three witnesses reflected certainty about what
Kinsley said that the meeting and I find their testimony to be
more reliable than that of DeVore and Bryant.
Based on the credited testimony, I find that at the May 16,
2012 meeting in response to questions asked by various Board
members, Kinsley stated the Respondent would hire School
District employees if they submitted applications and met the
Respondent’s hiring criteria which included a background
check, a drug screen, an interview, and dexterity tests. Kingsley
also indicated that the Respondent would hire the current
School District employees at the same rate of pay. Finally, he
indicated that the Respondent would recognize the Union if it
hired 51 percent or more of the existing work force.
At this meeting the Board of Education voted to approve the
contract between the Respondent and the School District. While
the contract provides that “The District and Provider have
agreed to the terms of this agreement as of the 16th day of May,
2012” (GC Exh. 17, p. 17) the contract was actually executed
by representatives of the School District and the Respondent on
FIRST STUDENT INC., A DIVISION OF FIRST GROUP AMERICA 15
May 24, 2012, and June 1, 2012, respectively. The contract
provides that it is effective from July 1, 2012, through June 30,
2017. The value of the entire contract is $9,519,420 (GC Exh.
4).
At the conclusion of the School Board meeting, Bryant, De-
Vore, and four other employees were in the parking lot outside
the building. Bryant testified that Kinsley was walking toward
them and as he approached the group, Kinsley put his arm
around one of the employees in said “don’t worry, everything
will be fine.” According to Bryant, DeVore then asked Kinsley
if the Respondent would recognize the Union and Kingsley
responded “yes” and “welcome to First Student.” DeVore testi-
fied that Kinsley approached the group and said “don’t worry.
Everything will be okay. This is going to be smooth.” He added
that he understood why employees were hesitant but that every-
thing was going to be okay and added that “everything will be
the same.” DeVore testified that she asked Kinsley whether the
Respondent would recognize the Union and he responded “yes
we will, we’re Union friendly.” He added “We have a master
agreement with the Teamsters, it is not a problem.”
Bradley and Kinsley also testified regarding this brief meet-
ing in the parking lot. According to Bradley, he and Kinsley
walked out of the building together. Bradley testified that as he
and Kinsley walked past the group including DeVore and Bry-
ant, DeVore told Kinsley that the company would be required
to recognize the Union if it hired 50 percent plus one and not 51
percent of the current work force and that Kinsley should know
that. Bradley testified that he kept walking and did not hear
anything further.
Kinsley testified that as he and Bradley approached the
group including DeVore and Bryant, DeVore told him that his
statement about recognizing the Union if it hired 51 percent or
more of the employees was incorrect and he should say that the
Respondent would recognize the union if it hired 50 percent
plus one of the employees. Kinsley acknowledged that De-
Vore’s statement was correct. Kinsley then stated to the group
of employees that the Respondent’s goal was to hire as many
employees as it could that met all of the Respondent’s hiring
“protocols.” He added that if employees met the Respondent’s
hiring criteria their wages would be maintained and “they
shouldn’t have anything to worry about in coming to work for
our Company.” He denied, however, saying that “everything
would remain the same.”
To the extent that the testimony of Bradley and Kinsley con-
flicts with that of DeVore and Bryant regarding this brief meet-
ing, I credit the testimony of Bryant and Kinsley. As noted
previously, Bradley is an independent witness and his demean-
or reflected certainty about how the encounter began. I find
Kinsley’s version of the conversation to be more plausible than
that of Bryant and Devore. As noted previously I find that
Kinsley had indicated at the just concluded Board of Education
meeting that the Respondent would recognize the Union if it
hired 51 percent of the School District’s employees as its em-
ployees. I doubt that Kinsley would immediately afterward say
that the Respondent would recognize the Union without making
any reference to the requirement of hiring a majority of the
existing work force. I also note that DeVore acknowledged on
cross-examination that her pretrial affidavit did not indicate that
Kinsley told the group of employees that “Everything would
stay the same.” (Tr. 268.)
The May 17, 2012 Meeting with Employees
On May 17, 2012, the Respondent met with the School Dis-
trict’s unit employees at the School District’s transportation
facility. Present for Respondent were Meek, Kellerman, Kins-
ley, Char Campbell, a new human resources manager, and John
Kiraly, a former School District supervisor whom the Respond-
ent had hired to be its location manager. Almost all of the
School District’s transportation employees were present.
Peatross and Bradley were also present.
Meek briefly discussed the Respondent’s operation and man-
agement structure. The Respondent then distributed a docu-
ment, dated May 17, 2012 (GC Exh. 5) to the employees who
were present. The opening paragraph of the document indicat-
ed:
Welcome to First Student. As you know, First Student has
been selected as the student transportation provider for the
Saginaw Public Schools. We are looking forward to working
with you to serve the community.
With respect to the hiring procedure, the memo stated:
All current Saginaw Public School drivers and monitors who
successfully pass the company’s hiring criteria will be offered
an employment opportunity with First Student. You are not
hired and officially considered an employee of First Student
until you successfully meet and pass all the requirements
listed below and are extended a formal job offer:
Background checks
Employment history checks
Driving history review
Criminal records checks
Physical exam
Drug test
Physical Performance Dexterity Test (PPDT)
Completion of training requirements and classroom and be-
hind the wheel evaluations
The memo also stated that employees would be given inter-
views and employment applications had to be completed and
returned by May 23, 2012, for an employee to maintain his or
her seniority.
With regard to pay rates, the memo indicated that school bus
drivers and monitors who turned in an application by May 23,
2012, would maintain their current rate of pay and that the
hourly rate would also apply for field trips and athletic trips.
The memo further indicated that they would be paid a “B”
hourly rate for nonstudent transportation duties (i.e. attending
training, employer school meetings, clerical work, bus washing,
etc).6 The memo further indicated that employees would be

6 The Respondent’s August 1, 2012, offer letter to Bryant indicated
that his rate of pay would be $15.23 while driving and $10 an hour for
all nondriving duties (GC Exh. 8).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
paid a guarantee of 1½ hours for each a.m. and p.m. shift
worked and midday routes would be paid a minimum of one
hour. With respect to training, the memo indicated that current
School District drivers who complete the Respondent’s training
program and were hired by it would receive a bonus of $150 in
their initial paycheck. It also indicated that current monitors
who completed the Respondent’s training program and were
hired would receive a bonus of $75 in their initial paycheck.
The memo stated that all of the Respondent’s driver and
monitor positions are considered part time and that benefit pro-
grams are designed for a part-time work force. The memo also
indicates that the Respondent offered medical, dental, and divi-
sion insurance plans to its employees and that current drivers
and monitors serving in the School District who enroll in the
medical insurance plan would receive a company-paid contri-
bution of 80 percent towards employee-only coverage.
The memo contained several terms and conditions of em-
ployment that differed from those contained in the collective-
bargaining agreement between the Union and the School Dis-
trict. Under the collective-bargaining agreement, employees
received one hourly wage rate for all of the work they per-
formed regardless of its nature. The pay guarantee was different
in that under the collective-bargaining agreement, bus drivers
were guaranteed 4.5 hours per day and monitors were guaran-
teed 4.3 hours per day. Pay for training was also different in
that under the collective-bargaining agreement employees were
paid their hourly rate for training.
Kellerman reviewed the topics contained in the memo and
gave employees an opportunity to ask questions about the in-
formation they had received. One of the questions asked was
whether the Respondent would recognize the Union. According
to Kellerman’s uncontroverted testimony, he responded by
saying that the Respondent had a neutrality policy toward un-
ions and that if there was an existing union and the Respondent
hired 50 percent plus one of the bargaining unit, the union
could request recognition. The Respondent also distributed
applications for employment to the employees who were pre-
sent at this meeting.
The Initial Discussions Between the Union and
the Respondent
On May 18, 2012, DeVore sent a letter to Kinsley on behalf
of the “USW International Union; And Its Affiliated Local
#8410-01” requesting recognition and bargaining regarding the
Respondent’s bargaining unit at the Saginaw public schools
(GC Exh. 11). On May 21, 2012, DeVore sent an email to
Kinsley and Meek, attaching her May 18 letter and requesting
that bargaining begin for the Saginaw unit in late May or June
2012. After not receiving a response to her May 21 email, De-
Vore contacted Meek by phone within 2 weeks of her email and
requested that bargaining begin. Meek responded that he would
not be handling negotiations but that Audrey Adams, one of the
Respondent’s attorneys, would be responsible for the negotia-
tions. DeVore called Adams and spoke to her in early June and
requested that the parties establish dates for bargaining. DeVore
stated that it was her position that the negotiations should start
with the existing contract between the Union and the School
District.
Adams indicated that the Respondent was in the process of
hiring employees at the Saginaw location and added that she
did not know at that point if the Respondent would be legally
obligated to recognize the Union. Adams told Devore that the
Respondent’s contract with the School District became effec-
tive in July and that she would not know anything concrete
until after that date. Devore asked if she could call Adams after
July 4 to see where the Respondent was in the hiring process.
Adams agreed that Devore could call her at that time. Adams
also indicated that she would be taking maternity leave from
approximately mid-August to late November. On June 13,
2012, Devore sent an email to Adams stating that she would
call her after July 4 and attaching the contract between the
School District and the Union.
At the local level, after the meeting that the Respondent held
with employees on May 17, Bryant introduced himself to Kel-
lerman and informed him that he was the unit president of the
local union. Bryant also introduced Union Stewards Ken Berry
and Shanta Rowe. Pursuant to an email from Kellerman to Bry-
ant requesting a meeting to discuss seniority issues, on June 14,
2017, Kellerman, Kiraly, Bryant, Berry, and Rowe met to dis-
cuss the seniority rankings of employees who held dual roles as
bus drivers and monitors. During the meeting the parties dis-
cussed the manner in which those employees should be ranked.
On June 19, Kellerman sent an email (CP Exh. 10) to Bryant
indicating the following:
Thanks for meeting with John Kiraly and me on June 14 to try
to come up with a mutual way to handle the seniority rankings
for the dual-role assistants/drivers who have to choose wheth-
er [they] want to be a driver or a monitor for First Student.
Attached is a preliminary draft of the seniority lists for drivers
and monitors with the dual-role folks listed on both. Please
review these lists and let me know by tomorrow (Wednesday,
June 20) if there are any changes or further discussions neces-
sary. Thereafter, we’ll need to get this information out to the
dual-role applicants so they can make a choice on their pref-
erences of being a driver or a monitor.
Thanks for your input
After reviewing the list with Berry and Rowe, Bryant faxed
it back to Kellerman on June 19. (CP Exh. 11.) The mutually
agreed-upon list was used by the Respondent as the seniority
list for the 2012–2013 school year.
The Completion of the Respondent’s Hiring Process
After the Respondent received completed applications from
School District unit employees, it began conducting back-
ground checks and interviews. Apparently not all employees
were interviewed, however, as Stidhum-Stewart was hired
without ever having an interview.
The Respondent began to schedule training for applicants in
June 2012. Employees were issued the Respondent’s national
employee handbook when they began their training. The ac-
knowledgment form employees were required to sign indicates
that most employees received their handbooks in mid-June
FIRST STUDENT INC., A DIVISION OF FIRST GROUP AMERICA 17
2012 (R. Exh. 11).
The Respondent issued letters offering employment (offer
letters) to two School District unit employees on June 27, 2012,
the third on July 11, 2012, and the remainder on August 1, 2012
(R. Exh. 6). The Respondent sent offer letters to 42 of the ap-
proximately 55 unit employees that were employed by the
School District. The offer letters indicate the specific rate of
pay offered to individual employees. The offer letters issued on
August 1 indicate that an employee’s “official hire date” was
August 6 but that date was contingent upon the completion of
the hiring requirements. The Respondent did not consider em-
ployees to be actually hired until they signed the offer letter
accepting the terms set forth in the letter.
The Respondent began operations for the 2012–2013 school
year on August 27, 2012. On that date, all of the employees
who had been hired by the Respondent in its Saginaw public
school unit attended a “kickoff” meeting on that date. The pur-
pose of this meeting was to prepare employees for the begin-
ning of the school year. As of August 27, 2012, 41 of the 51
employees employed by the Respondent had been employed in
the School District’s bargaining unit (R. Exh. 12). By August
17, the Respondent had hired 36 of the former School District
unit employees and had hired only 2 employees who were not
previously employed by the School District. All of the employ-
ees hired by August 17 were either bus drivers or monitors,7
which are the two unit classifications.
I find that by August 17, 2012, the Respondent had hired a
substantial and representative complement of its employees and
was therefore, on request, obligated to bargain with the Union
as of that date. Fall River Dyeing & Finishing Corp. v. NLRB,
482 U.S. 27, 52–53 (1987); Sullivan Industries, 302 NLRB 144
(1991), enfd. in relevant part, 957 F. 2d 890 (D.C. Cir. 1992).
As I noted at the outset, the Respondent does not deny that it is
a successor to the to the School District for the provision of
transportation services but disagrees with the General Counsel
and Charging Party that it is a “perfectly clear” successor that
had an obligation to bargain with the Union prior to setting
initial terms and conditions of employment.
At the August 27, 2012, kickoff meeting the Respondent
provided employees with an attendance policy that was to be-
come effective on September 1, 2012 (GC Exh. 10). After the
meeting, Kellerman and Kiraly noticed that the policy con-
tained language that did not apply to the Saginaw location. The
language was corrected and the Respondent issued a revised
policy to employees on September 4, 2012. (R. Exh. 13.) The
August 27 policy, as revised on September 4, sets forth a com-
prehensive attendance policy including the requirements for
taking sick leave. It also includes a disciplinary procedure for
“chargeable absences.” The record establishes that the new
attendance policy contained differences from than the School
District’s attendance policy as set forth in the collective-
bargaining agreement with the Union. For example, the sick
leave provision contained in article XVI and the leave of ab-
sence provision contained in article XVIII of the collective

7 Under the collective-bargaining agreement between the School
District and the Union the position of monitor was referred to as a bus
assistant.
bargaining agreement are substantially different than the at-
tendance policies set forth in the Respondent’s policy.
The Respondent began to provide school bus transportation
services to the Saginaw public schools on or about September
4, 2012 pursuant to its unilaterally established terms and condi-
tions of employment.
The Union Again Requests Bargaining
After July 4, 2012, DeVore called Adams several times on
the telephone to discuss recognition and bargaining for the
Respondent’s Saginaw unit. Adams did not answer the calls
and Devore left several voicemail messages requesting that
Adams contact her. Adams testified she recalled seeing De-
vore’s number come up on her telephone caller ID but did not
return the calls because the Respondent was still in the hiring
process and she had nothing to tell DeVore.
At some point in August, Adams went on maternity leave.
After not receiving any response from Adams, on August 29,
2012, DeVore wrote a letter to John Kiraly, the Respondent’s
location manager for the Saginaw unit. (GC Exh. 14.) In her
letter, DeVore indicated that she understood that the Respond-
ent had hired a majority of its existing work force in the Sagi-
naw unit from employees who had previously worked for the
School District. The letter again requested that the Respondent
recognize the Union and commence bargaining.
Since DeVore had been unsuccessful in reaching Adams, she
had asked Bryant to assist her in getting a name from the Re-
spondent as to who would be responsible for the negotiations
involving the Saginaw unit. Bryant obtained the name of anoth-
er one of the Respondent’s attorneys Kristen Huening, from
Kellerman and passed her name on to Devore.
On August 30, 2012, DeVore, sent another letter requesting
recognition and bargaining to Huening. After not receiving a
reply from Huening for approximately 2 weeks, DeVore called
Huening. Huening advised DeVore that she would not be han-
dling negotiations as she was an EEOC attorney and would
forward the bargaining request to another attorney, Raymond
Walther. On September 18, 2012, shortly after obtaining Wal-
ther’s name, DeVore sent Walther an email asking him to give
her a call regarding the Saginaw public school unit. Walther
replied by email the same day indicating that he was in negotia-
tions in Georgia and that he would call her when he got back to
his office later that week. (GC Exh. 16.) On September 21,
Walther sent an email to DeVore indicating that he would be
Devore’s contact while Adams was on maternity leave but that
Adams would be handling negotiations.
On September 21, 2012, the Union filed a charge in 07–CA–
089760 alleging that the Respondent violated Section 8(a)(5)
and (1) by refusing to recognize and bargain with the Union.
The charge further alleges that the Respondent fail to bargain
over initial terms and conditions of employment despite the fact
that it was a “perfectly clear” successor (GC Exh. 18).8
On September 25, DeVore emailed Walther. Her email indi-
cated that she would like to begin “ negotiations as soon as
possible and preferably before November when Ms. Adams
returns from maternity leave. Is there any way we can begin

8 This charge was later withdrawn.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
negotiations before that?” On the same date, Walther replied by
email indicating that he was “booked into November anyway.
So it makes the most sense to start negotiations with Audrey
once she’s back.”
On October 1, Devore sent Walther an email indicating that
the Union would wait until November before beginning negoti-
ations as long as the Respondent maintained the terms and con-
ditions of employment that the unit employees had prior to the
Respondent beginning operations. On the same date, Walther
replied by email indicating “As you may know, the company
has no obligation to assume the terms and conditions of em-
ployment from the predecessor’s CBA with the Union. I under-
stand that you filed a ULP charge with the NLRB on this issue.
The NLRB has requested my response as they conduct their
investigation, and I will comply with that request.” (GC Exh.
16.) Later on October 1, Walther sent DeVore the following
email: “I had some time free up in October if you would still
like to start negotiations this month. If you’re going to with-
draw the ULP charge, I can send you a recognition letter and
we can get some dates scheduled. (Of course, if you are not
willing to withdraw the ULP charge, then we will not be able to
begin negotiations until the Board concludes its investigation.)
If you agree we can schedule a couple days the week of Octo-
ber 15. Let me know how you would like to proceed.”
On October 3, Walther sent the following email to DeVore:
“I left you another voicemail this morning. Could you please let
me know if the Union intends to begin negotiations on October
15, 2012 and drop the pending ULP charge? Thanks.” On Oc-
tober 5, DeVore sent Walther an email indicating that she was
disappointed that he was conditioning negotiations on the Un-
ion’s withdrawal of the unfair labor practice charge. She further
indicated “Of course, the Union wants to bargain. So, if you
rescind your demand that the Union withdraw the ULP charge
before First Student will bargain, I would be pleased to meet
with you during the week of October 15. Walther responded to
DeVore’s email on the same date indicating: “Apologies for the
confusion, I’m happy to begin negotiations on 10/15 regardless
of whether you withdraw the charge. It’s just that I see no point
for the charge at this point. The Company has never refused to
bargain with you. Which days are you available the week of
10/15.”
Thereafter, the parties agreed to begin negotiations on Octo-
ber 17, 2012. The negotiations that began in October 2012 were
ongoing at the time of the hearing but no agreement had been
reached by the parties.
Analysis
In NLRB v. Burns Security Services, 406 U.S. 272, 294–295
(1972) the Supreme Court stated:
Although a successor employer is ordinarily free to set initial
terms on which it will hire the employees of a predecessor,
there will be instances in which it is perfectly clear that the
new employer plans to retain all of the employees in the unit
and in which it will be appropriate to have him initially con-
sult with the employees bargaining representative before he
fixes terms.
In Spruce Up Corp., 209 NLRB 194 (1974), enfd. on other
grounds, 529 F. 516 (4th Cir. 1975) the Board set forth its anal-
ysis as to how it would apply the “perfectly clear” exception to
the normal rule that a successor employer is free to set initial
terms upon which it will hire employees.
In Spruce Up, on February 6, 1970, when the union learned
that the new employer, Fowler, was likely to take over the op-
eration of the Spruce Up barbershops it requested Fowler to
recognize and bargain with it. Fowler refused, contending that
he had no employees yet as he anticipated on taking over the
barber shops on March 3. When asked about his intentions
about hiring barbers, Fowler told the union representatives “all
the barbers working will work.” He also told the union repre-
sentatives what he planned to pay the barbers.
On February 27, Fowler distributed to the barbers at all of
the shops individual form letters setting forth the rates of com-
mission he intended to pay, which were different from those
paid to the barbers by Spruce Up. The Board found that
Fowler’s statements to the employees of the predecessor,
Spruce Up, did not operate to forfeit his right to set initial terms
of employment.
In so finding, the Board held:
When an employer who has not yet commenced operations
announces new terms prior to or simultaneously with his invi-
tation to the previous workforce to accept employment under
those terms, we do not think it can be fairly said that the new
employer “plans to retain all the employees in the unit,” as
that phrase was intended by the Supreme Court. The possibil-
ity that the old employees may not enter into an employment
relationship with the new employer is a real one as illustrated
by the present facts. Many of the former employees here did
not desire to be employed by the new employer under the
terms set by him—a fact which will often be operative, and
which any new employer must realistically anticipate.
Since that is so, it is surely not “perfectly clear” to either the
employer or to us that he can “plan to retain all the employees
in the unit” under such a set of facts.
We concede that the precise meaning and application of the
Court’s caveat is not easy to discern. But any interpretation
contrary to that which we are adopting here would be subject
to abuse, and would, we believe, encourage employer action
contrary to the purposes of this Act and lead to results which
we feel sure that the Court did not intend to flow from its de-
cision in Burns. For an employer desirous of availing himself
of the Burns right set initial terms would, under any contrary
interpretation, have to refrain from commenting favorably at
all upon employment prospects of old employees for fear he
would therefore forfeit his right to unilaterally set initial
terms, a right to which the Supreme Court attaches great im-
portance in Burns. And indeed, the more cautious employer
would probably be well advised not offer employment to at
least some of the old work force under such a decisional prec-
edent. We do not wish—nor do we believe the Court
wished—to discourage continuity in employment relation-
ships for such legalistic and artificial considerations. We be-
lieve the caveat in Burns, therefore, should be restricted to cir-
FIRST STUDENT INC., A DIVISION OF FIRST GROUP AMERICA 19
cumstances in which the new employer has either actively or,
by tacit inference, misled employees into believing they
would all be retained without change in their wages, hours or
conditions of employment, or at least to circumstances where
the new employer, unlike the Respondent here, has failed to
clearly announced its intent to establish a new set of condi-
tions prior to inviting former employees to accept employ-
ment.
Applying the principles set forth above, I find that the Re-
spondent was not required to negotiate initial terms of employ-
ment under Burns and Spruce Up, and that the Respondent did
not violate Section 8(a)(5) and (1) of the Act in this regard as
alleged by the General Counsel.
In the instant case, the first contact between the Respondent
and the Union occurred in July 2011 at the interview that the
School District conducted with the Respondent regarding its
proposal to provide transportation services for the 2011–2012
school year. DeVore attended the meeting at the invitation pur-
suant to an invitation extended by Peatross. At this meeting, the
credited testimony establishes Kinsley stated that the Respond-
ent would hire the School District’s transportation employees if
they met the Response hiring criteria and that the Respondent
would maintain the current wages. Kinsley also stated that the
Respondent intended to hire a majority of the school district’s
employees if they met the Respondent’s hiring protocol and
that the Respondent’s policy was to recognize a union if it hired
a majority of the current workforce. Kinsley also stated that at
other locations, the Respondent had hired 80 to 90 percent of
the existing workforce.
Kinsley’s statements establish that it was anticipated that the
Union would remain the representative of the employees if the
Respondent obtained a contract from the School Board. Thus,
even though no employees were present at this meeting, I find
that since Devore, a representative of the Union, was present,
Kinsley’s statements are a communication with employees
through their representative. Marriott Management Services,
Inc., 318 NLRB 144 fn. 1 (1995).
As noted above, the School District’s superintendent decided
not to subcontract transportation services for the 2011–2012
school year and notified the Respondent of this fact in Novem-
ber 2011.
After the School District issued another RFP for the 2012–
2013 school year, the Respondent submitted a new proposal. In
February 2012, negotiations began again between the Respond-
ent and the School District for a contract regarding the provi-
sion of transportation services. While these negotiations were
ongoing, Peatross arranged for a meeting on March 2, 2012,
between representatives of the Respondent and unit employees
and approximately 40 unit employees attended the meeting.
According to the credited testimony, at this meeting the Re-
spondent, through Meek, notified the employees that they
would be receiving an application form at a future meeting if a
contract was reached between the Respondent and the School
District. Meek indicated that after the completion of the appli-
cation and a necessary background check, applicants would be
subject to a preemployment drug screen, a physical examina-
tion and receive training. Meek further stated that after comple-
tion of these requirements the Respondent would offer em-
ployment to existing employees who met its criteria.
In response to a question from an employee regarding how
many employees would be hired by the Respondent, Meek
indicated that in a conversion between a public school transpor-
tation system and the Respondent’s operation, the Respondent
typically hired 80 to 90 percent of the existing work force.
Meek further stated that if the employees are represented and
the Respondent hired 51 percent of the existing work force as
its own, the employees would bring their representation with
them and a new contract would be negotiated.
Meek stated that the Respondent did not know how many
hours would be guaranteed to employees but that it would
know more when the routes were established. In response to
questions regarding under what conditions the employees
would work if hired by the Respondent, Meek stated that those
issues would be subject to negotiations.
At the May 16, 2012, Board of Education meeting which
Devore, Bryant and approximately 5 unit employees attended,
the credited testimony establishes that Kinsley stated that the
Respondent would hire School District employees if they sub-
mitted applications and met the Respondent’s hiring criteria
which included a background check, a drug screen, an inter-
view, and dexterity tests. Kinsley also indicated that the Re-
spondent would hire the current School District employees at
the same rate of pay and that the Respondent would recognize
the Union if it hired 51 percent or more of the existing work
force.
In the discussion that Kinsley had with DeVore, Bryant and
four other unit employees after the Board of Education meeting
on May 16, 2012 Kinsley stated that it was the Respondent’s
goal to hire as many of the School District’s employees as it
could which met its hiring criteria. Kinsley acknowledged to
DeVore that it would be more accurate for him to say that the
Respondent would recognize the Union if it hired 50 percent
plus one of the existing work force. He also repeated that if
employees met the Respondent’s hiring criteria their wages
would be maintained.
Based on the statements noted above, it is clear that from Ju-
ly 11, 2011, through May 16 2012, the Respondent expressed a
willingness to hire a majority of the School districts employees
and that if it did so, it would recognize and bargain with the
Union. However, the Respondent also indicated that, if it did
recognize the Union, a new contract would be negotiated. The
Respondent indicated it did not know how many hours would
be worked by employees. The Respondent stated that employ-
ees would retain their rate of pay but, when asked about issues
such as paid time off vacation pay and sick pay, the Respondent
indicated those issues would be subject to negotiations. These
statements indicate that the Respondent would not be adopting
the School District’s collective-bargaining agreement and that
new working conditions would be implemented. The Respond-
ent stated that employees would be employed at their existing
wage rates but beyond that was not specific with respect to the
employment conditions it would apply.
On May 17, after the Board of Education voted to approve
the contract between the Respondent and the School District,
the Respondent clearly and unequivocally announced in writing
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD20
the terms and conditions of employment that it was inviting
employees to apply under. This memo indicated with specifici-
ty the Respondent’s initial terms and conditions of employ-
ment. With respect to rates of pay, the memo indicated that all
current school bus drivers and monitors who returned a com-
pleted employment application by May 23 2012 would have
their current rate of pay retained and that this rate would apply
for field trips and athletic trips. It also indicated, however, that
a “B” hourly rate would apply for work performed for nonstu-
dent transportation duties (i.e. attending training, employer
school meetings, clerical work bus washing etc.)
This clear and unequivocal expression of the employment
terms offered by the Respondent was distributed to employees
at a meeting that the School District mandated that all unit em-
ployees attend. Employees were permitted to ask questions
about the terms and conditions of employment announced in
the memo. At this meeting employment applications were made
available for all employees who were interested in working for
the Respondent under the conditions it had announced.
The Respondent’s clear and unequivocal announcement of
the conditions upon which it invited employees to apply for
jobs with it occurred while the unit employees were still em-
ployed by the School District, as it was before the school year
ended at the end of June 2012. It also occurred before the con-
tract between the School District and the Respondent had actu-
ally been signed and before its effective date of July 1. The
May 17 meeting occurred over 3 months before the Respondent
would begin to actually provide school transportation services.
Thus, the Respondent clearly and unequivocally announced
new terms of employment substantially before it commenced
operations. As in Spruce Up, the Respondent announced these
terms simultaneously with offering employees an application to
apply for work under those terms. Under these circumstances, I
find that the Respondent did not “either actively or, by tacit
inference, mislead employees into believing they would all be
retained without change in their wages, hours or conditions of
employment” under the standard set forth by the Board in
Spruce Up, at 195. If employees were unclear about what terms
and conditions of employment the Respondent was offering
before May 17, 2012, there could be no doubt of what those
terms were after the Respondent distributed its May 17 2012
memo. Thus, when employees submitted applications that were
handed out at that meeting, they knew in detail the initial terms
and conditions of employment that were being offered by the
Respondent. After reviewing the applications and conducting
background checks and interviews the Respondent offered em-
ployment to the first two unit employees on June 27 and did not
offer employment to the great majority of the former unit em-
ployees until August 1, 2012.
I do not find that the fact that Kellerman and Kiraly met with
Bryant and two union stewards in June 2012, and reached an
accord in the manner in which seniority would be applied for
dual role employees is sufficient to deprive the Respondent of
its right under Burns and Spruce Up to unilaterally set its initial
terms of employment. As I have indicated, it was anticipated
that the Respondent would recognize the Union. This type of
cooperation in the interim period before the Respondent actual-
ly commenced operations is both practical and laudable. To use
it as a basis to deprive the Respondent of its right under Burns
to unilaterally establish conditions of employment would, in my
view, discourage continuity in the employment relationship in
an artificial manner, a result which the Board clearly indicated
a desire to avoid in Spruce Up.
My conclusion that the Respondent had a right to unilaterally
establish its initial terms and conditions of employment is in
accord with the Board’s decision in Banknote Corp. of Ameri-
ca, 315 NLRB 1041 (1994). In that case the Board found that
the employer was not a “perfectly clear” successor within the
meaning of Burns and Spruce Up. In that case, the respondent
began operations at the facility involved on April 19, 1989. On
March 23, 1987, the respondent advised the unions involved
that it intended to hire its initial workforce from the employees
who were currently employed at the facility. At the same time
the respondent indicated it was not making any commitment to
recognize the unions or be bound by their collective bargaining
agreements. On April 11, the respondent met with union repre-
sentatives and informed them that it would not honor the col-
lective bargaining agreements they had with the predecessor.
The respondent further advised the unions that it intended to
have a more flexible operation and that it would cross train
employees so they would be able to perform various functions.
The Responded told the unions that the health benefits present-
ly in effect would continue for a period of 60 days. No other
terms and conditions of employment were discussed.
On April 16, the Respondent interviewed job applicants from
the predecessor employees. Three employees testified regarding
those interviews at the trial. At these interviews the respondent
mentioned flexibility and that employees may be asked to do
different things but no more specific information was revealed
about benefits except that one employee was told that her salary
and benefits would remain the same. On April 19 the Respond-
ent began operations with 50 employees, all of whom had
worked for the predecessor.
The Board found that simultaneous with its stated intention
to retain the predecessor’s employees, the respondent conveyed
the message that it would not be adopting the predecessor’s
terms and conditions of employment and thus put the employ-
ees on notice that it would be making changes in the employ-
ment terms of the predecessor. The Board also noted that spe-
cific anticipated changes were communicated to the unions and
to three of the prospective employees at the interviews. Under
these circumstances, the Board concluded that the respondent
was not a “perfectly clear” successor under Burns and that its
bargaining obligation did not attach until it hired the employees
on April 19. Banknote Corp. of America, at 1043.
In Specialty Envelope Co., 321 NLRB 828, 831–832 (1996)
the Board found that Specialty was not a “perfectly clear” suc-
cessor under Burns and Spruce Up. In that case, before extend-
ing job offers to the predecessor’s employees, Specialty distrib-
uted application packets in which it announced the terms and
conditions of employment that would be in effect when it began
operations. Specialty thereby informed applicants that if they
applied and were hired there would be different terms and con-
ditions of employment. In the instant case, as noted above,
employees were similarly given new terms t and conditions of
employment in writing when they were given applications.
FIRST STUDENT INC., A DIVISION OF FIRST GROUP AMERICA 21
I also find the Board’s decisions in Bekins Moving & Storage
Co., LLC, 330 NLRB 761 (2000); Planned Building Services
Inc., 318 NLRB 1049 (1995); and Marriott Management Ser-
vices, Inc., 318 NLRB 144 (1995), to be supportive of my deci-
sion in this case. In each of these cases, as here, the successor
employer made clear to the employees of the predecessor that
they were being hired under different conditions of employ-
ment. Thus, in each of these cases the Board found that the
successor was entitled to unilaterally establish initial terms and
conditions of employment.
I find the cases relied on by the General Counsel and the
Charging Party in support of their claim that the Respondent is
a “perfectly clear” successor to be distinguishable. In Elf
Atochem North America, Inc., 339 NLRB 796 (2003), prior to
the respondent commencing operations in June 1998, on Janu-
ary 27, 1998, it informed the employees that it would provide
employment to all of the existing work force of the predecessor
dedicated to performing work for AtoHaas. The Respondent
also indicated that it would recognize employee seniority and
would provide employees with an equivalent salary and a com-
parable health, welfare and benefits package, including a pen-
sion plan, a savings plan and vacation benefits. In addition, on
March 17, 1998, the respondent informed the union in a letter
that it would keep the predecessor’s collective bargaining
agreement in effect until the parties negotiated a replacement
contract.
In the instant case, the Respondent clearly and unequivocally
indicated to employees in writing its initial terms and condi-
tions of employment before they applied for positions with the
Respondent. In addition, the Respondent never indicated that
the terms and conditions of the School District contract would
be applied until a new agreement was reached. Rather, the Re-
spondent made it clear that it would not apply the terms of that
contract.
In DuPont Dow Elastomers LLC, 332 NLRB 1071 (2000),
the Board found that DDE was a “perfectly clear” successor. In
that case, on November 15, 1995, DDE announced to the un-
ions representing unit employees at the predecessor DuPont’s
Louisville and Chambers Works facilities that it intended to
offer employment to all incumbent employees at both plants
under conditions that would be announced on November 30.
On November 30, DDE notified the unions that although it
declined to honor their contracts with the predecessor, it would
maintain the employees’ wages and benefits under those con-
tracts, only adding a bonus program called success sharing. In
mid-December 1995, DDE held a series of meetings with in-
cumbent employees explaining in detail the terms of its offers.
There was no indication of changes other than the addition of
the success sharing plan. On January 2, 1996, DDE tendered
unconditional offers of hire under those terms. Under these
conditions, the Board found that by November 30 the DDE had
indicated that it intended to retain its predecessor’s employees
at both facilities under the same terms and conditions of em-
ployment, except for the success sharing plan, thus leading
employees to believe that they would be employed on substan-
tially the same basis as before. In the instant case, as noted
above, the Respondent clearly indicated in writing what its
initial terms would be before employees applied to work for it.
This factor also distinguishes the instant case from Hilton’s
Environmental, Inc., 320 NLRB 437 (1995), and Canteen Co.,
317 NLRB 1052 (1995), enfd. 103 F.2d 1355 (7th Cir. 1997).
In Fremont Ford, 289 NLRB 1290, 1296–1297 (1988), the
Board found that the Respondent failed to clearly announce a
new set of conditions prior to inviting former employees to
accept employment. In so finding the Board noted that the re-
spondent “embarked on a misinformation campaign” and in-
structed supervisors to give false and misleading information to
the predecessor’s employees who inquired about the working
conditions that the respondent intended to impose. It was not
until after the hiring process began that the Respondent first
informed the predecessor’s employees that there would be sig-
nificantly different employment conditions. In addition, the
respondent engaged in other unfair labor practices that demon-
strated an unlawful plan to defeat the union’s status as the em-
ployees bargaining representative. The Board emphasized in its
finding that any uncertainty as to what the respondent would
have done, absent its unlawful purpose, must be resolved
against it since it could not be permitted to benefit from its
unlawful conduct. In the instant case, the employees were clear-
ly and unequivocally informed of the terms and conditions that
the Respondent was offering before they submitted applications
and the hiring process began. In addition, there is no evidence
that the Respondent engaged in any unlawful conduct during
the period of time it was hiring its workforce that was designed
to defeat the Union’s status as the bargaining representative.
Finally, the instant case is also distinguishable from Road &
Rail Services Inc., 348 NLRB 1160 (2006). There, the issue
was whether the respondent violated Section 8(a)(3), (2), and
(1) of the Act by recognizing the union and entering into a col-
lective bargaining agreement with it prior to the hiring of the
respondent’s workforce and the commencement of its opera-
tions. In that case, the respondent did not unilaterally set initial
terms, but rather negotiated an agreement with the union which
was in effect at the time it commenced operations and employ-
ees reported to work. Thus, unlike the instant case, Road & Rail
Services did not involve the issue of whether the employees
continued employment was contingent on their acceptance of a
successor’s unilateral implementation of the initial conditions
of employment.
On the basis of the foregoing, I find that the Respondent was
not a “perfectly clear” successor within the meaning of Burns
and Spruce Up and thus was privileged to unilaterally establish
its initial terms and conditions of employment on May 17,
2012. Thus, I find that the Respondent did not violate Section
8(a)(5) and (1) of the Act by failing to bargain with the Union
prior to the implementation of those terms of conditions of
employment, nor did it engage in unlawful direct dealing. Ac-
cordingly, I shall dismiss those allegations in the complaint.
Whether the Respondent Violated Section 8(a)(5) and (1) by
Unilaterally Implementing an Attendance Policy on
August 27, 2012
Paragraph 14 of the complaint alleges that on or about Au-
gust 27, 2012, the Respondent unilaterally implemented a new
employee attendance policy in violation of Section 8(a)(5) and
(1).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD22
As set forth above, on August 27, 2012, the Respondent is-
sued a comprehensive attendance policy to employees which
included a disciplinary procedure for “chargeable” absences.
On September 4, the Respondent issued a revised policy to
employees regarding attendance. These policies were imple-
mented without giving notice to or bargaining with the Union
and contained substantial and material differences from the
attendance policies set forth in the expired collective-
bargaining agreement between the Union and the School Dis-
trict.
The Board has long held that attendance policies are manda-
tory subjects of bargaining. Production Plated Plastics Inc.,
254 NLRB 560 (1981); Harris-Teeter Super Markets, Inc., 293
NLRB 743 (1989).
As I have noted above, on May 16, 2012, the School Board
voted to approve the contract between the School District and
the Respondent. On May 17, 2012, Respondent informed the
unit employees of its initial terms and conditions of employ-
ment and invited the unit employees to apply for positions with
it. On May 18 2012, and May 21, 2012, the Union submitted
written demands for recognition and bargaining to the Re-
spondent. DeVore diligently continued to assert the Union’s
request for recognition and bargaining in her June telephone
conversations with Adams. After July 1 DeVore called Adams
several times to discuss the Union’s outstanding request for
recognition and bargaining but Adams did not return her phone
calls. On August 27 and 30 the Union again submitted written
demands for recognition and bargaining to the Respondent.
By the time the Union made its initial demand for bargaining
on May 18, it was apparent that there was a substantial likeli-
hood that the Respondent would hire the majority of its em-
ployees from the School District’s workforce. The Respond-
ent’s hiring efforts after May 17 were focused on the hiring of
these former employees.
Under these circumstances, I find that the Union made a via-
ble demand for recognition and bargaining on May 18 which
was continuing in nature. Fall River Dyeing Corp. v. NLRB,
supra at 54; Fremont Ford, supra at 1295. By August 17, 2012,
the Respondent had hired a substantial and representative com-
plement of its work force and the overwhelming majority of
those employees had been employed by the School District.
Accordingly, the Respondent had an obligation to recognize
and bargain with the Union as of August 17, 2012. By unilater-
ally implementing an attendance policy on August 27, 2012 and
September 4, 2012, without giving notice to or bargaining with
the Union, the Respondent violated Section 8(a)(5) and (1) of
the Act. Production Plated Plastics, Inc., supra.
Whether the Respondent Delayed Bargaining in Violation of
Section 8(a)(5) and (1)
As set forth above, the Union, through DeVore, began to
demand recognition and bargaining from the Respondent on
May 18 and that demand was continuing in nature. When De-
Vore spoke to the Respondent’s attorney Adams by telephone
in early June and requested that the Respondent recognize the
Union and begin bargaining, Adams replied that it was prema-
ture as the Respondent had only begun hiring employees and
that the Respondent’s contract with the School District was not
effective until July 1. Adams and DeVore agreed to wait until
after July 4 to again discuss the Union’s request for recognition
and bargaining. After July 4 DeVore made several phone calls
to Adams but Adams never returned the calls. During this peri-
od the Respondent continued to hire employees and, by August
17, 2013, had hired a substantial and representative comple-
ment of its workforce, the majority of which were former unit
employees of the School District. Finally, on August 29, after
not receiving any response from Adams, DeVore wrote another
letter requesting bargaining in recognition to the Respondent’s
Saginaw location manager, Kiraly. On August 30 DeVore sent
another such letter to Huening, another one of the Respondent’s
attorneys.
Kiraly never responded to DeVore. DeVore called Huening
after not receiving a response to her letter for approximately 2
weeks, to discuss the Union’s request for recognition and bar-
gaining. Huening responded by telling DeVore that negotia-
tions were not her responsibility as she was an EEOC attorney.
Huening gave DeVore the name of yet another attorney for the
Respondent, Walther. After getting Walther’s name, DeVore
immediately sent him an email on September 18 asking him to
contact her regarding the Saginaw unit. Walther replied on the
same date indicating that he was in negotiations and telling
DeVore that he would contact her the following week.
On September 21, Walther sent an email to DeVore indicat-
ing he was the Union’s contact person while Adams was on
maternity leave but that Adams would be handling negotiations.
On September 25 DeVore replied to Walter indicating she
would like to start negotiations as soon as possible. On the
same date Walther replied saying that he was booked into No-
vember and it would make the most sense to start negotiations
when Adams returned.
On October 1, DeVore sent an email to Walter indicating
that the Union would wait until November if the Respondent
maintained the terms and conditions of employment that were
contained in the collective-bargaining agreement between the
Union and the School District. On October 1, Walther replied
indicating that the Respondent had no obligation to assume the
School District’s collective-bargaining agreement with the
Union. He also indicated that he understood that an unfair labor
practice charge had been filed. On October 1, Walther sent an
email to DeVore indicating that he could meet to start negotia-
tions in October if the Union was willing to withdraw the unfair
labor practice charge. He further indicated if the Union was not
going to withdraw the charge, then the Respondent would not
be able to begin negotiations until the Board concluded its in-
vestigation.
On October 3, Walther sent DeVore an email asking if the
Union intended to begin negotiations on October 15 and drop
the pending unfair labor practice charge. On October 5, Devore
replied by an email indicating that if the Respondent would
rescind its demand to withdraw the unfair labor practice charge
before the Respondent would bargain, the Union would meet
with the Respondent during the week of October 15. Finally, on
October 5, Walther sent Devore an email indicating that he
would begin negotiations on October 15 regardless of whether
the union withdrew the charge. By agreement the parties began
negotiations on October 17.
FIRST STUDENT INC., A DIVISION OF FIRST GROUP AMERICA 23
As the foregoing demonstrates, the Union earnestly pursued
its right to bargain with the Respondent as a successor to the
School District since May 18, the day after the Board of Educa-
tion approved the contract between the School District and the
Respondent. The Respondent attained a substantial and repre-
sentative complement of its workforce on August 17, a majority
of which were unit employees under the collective-bargaining
agreement between the School District and the Union. It was on
that date that the Respondent was obligated to recognize and
bargain with the Union. Rather than responding on May 17, the
Respondent treated the outstanding request to bargain in a cava-
lier fashion. Adams never responded to DeVore’s repeated calls
after July 1. Kiraly never responded to DeVore’s request.
Huening, after initially not responding for 2 weeks, essentially
told DeVore that negotiations were not her job and passed on
Walther’s name to DeVore. Walther initially wanted to have
the Union wait for Adams return from her maternity leave in
November. When DeVore requested that negotiations start
sooner, Walther then sought to have the Union withdraw its
pending unfair labor practice charge before finally agreeing to
bargain the week of October 15. Thus, negotiations did not start
until 2 months after August 17, the date the Respondent was
clearly obligated to commence negotiations.
In my view none of the reasons advanced by the Respondent
for the delay are sufficient to excuse its failure to bargain dur-
ing this period. The Respondent is a large corporation with
many resources, rather than devoting these resources to timely
responding to the Union’s request for bargaining, its representa-
tives either did not respond to the request or gave insufficient
reasons for the failure to meet and bargain. While it was treat-
ing the Union’s demand for recognition and bargaining in a
dilatory fashion, the Respondent implemented an unlawful
unilateral change in an important mandatory subject of bargain-
ing, rules regarding absences and the disciplinary process at-
tending those rules.
In Fruehauf Trailer Services, Inc., 335 NLRB 393 (2001),
the Board found that a delay in bargaining for almost 3 months
without good reason constituted an unlawful delay in negotia-
tions. In the context of the instant case, I find the 2 month delay
that occurred herein is sufficient to find that the Respondent
unreasonably delayed negotiations in violation of Section 8
(a)(5) and (1).
Whether the Respondent Insisted as a Condition of Meeting
that the Union Withdraw an Unfair Labor Practice Charge in
Violation of Section 8(a)(5) and (1)
As noted above, on October 1, Walther sent DeVore an
email indicating that he could schedule bargaining the week of
October 15 if the Union would withdraw the then pending un-
fair labor practice charge in 07–CA–089760. He further indi-
cated that if the Union was not willing to withdraw the charge,
the Respondent would not be able to begin negotiations until
the Board finished its investigation of the charge. On October
5, DeVore sent Walther an email indicating that she was disap-
pointed that he was conditioning negotiations on the Union’s
withdrawal of the unfair labor practice charge. She reiterated
the Union’s desire to bargain and further stated that if the Re-
spondent rescinded its demand that the Union withdraw the
charge before it would bargain with the Union, the Union
would be willing to meet during the week of October 15. After
receiving this email, on October 5 Walther indicated that he
would begin negotiations on October 15 regardless of whether
the Union withdrew the charge. Negotiations began on the
agreed-upon date of October 17.
The Respondent’s October 1 proposal that the Union with-
draw its unfair labor practice charge is a nonmandatory subject
of bargaining. Carlson Porsche Audi, Inc., 266 NLRB 141,
149–150 (1983); Patrick & Co., 248 NLRB 390, 393 fn. 5
(1980).
In the instant case, while Walther proposed on October 1 that
the unfair labor practice charge be withdrawn as a condition to
begin negotiations, on October 5 Walther dropped that proposal
and indicated that the Respondent would be willing to begin
negotiations on October 15, regardless of whether the union
withdraw the charge. It is permissible to propose a nonmanda-
tory subject of bargaining such as the withdrawal of an unfair
labor practice charge. What is impermissible is to insist to im-
passe that a charge be withdrawn before an agreement is
reached, or as in this case, negotiations commence.
It is clear that in the instant case the Respondent did not in-
sist to impasse that the Union withdraw the information prac-
tice charges condition to commencing negotiations. As noted
above, I find that the interjection of this issue caused some
additional brief delay before negotiations actually commenced.
However, since the Respondent raised the issue only briefly did
not insist to impasse on it I find it does not rise to the level of a
separate unfair labor practice. Carlson Porsche Audi, supra at
149–150. Accordingly, I shall dismiss this allegation in the
complaint
CONCLUSIONS OF LAW
1. At least from August 27, 2010, to June 5, 2013, The Unit-
ed Steel, Paper, and Forestry, Rubber, Manufacturing, Energy,
Allied Industrial and Service Workers International Union
(USW), AFL–CIO and Local 8410, The United Steel, Paper,
and Forestry, Rubber, Manufacturing, Energy, Allied Industrial
and Service Workers International Union (USW), AFL–CIO
(the Union) was the exclusive bargaining representative in the
following appropriate unit (the Unit):
All full-time and regular part-time drivers and monitors em-
ployed by First Student Inc., A Division of First Group Amer-
ica at its Saginaw, Michigan location, but excluding substi-
tutes and temporary drivers and monitors, dispatchers, confi-
dential employees and supervisors as defined in the Act.
2. Since June 5, 2013, The United Steel, Paper, and Forestry,
Rubber, Manufacturing, Energy, Allied Industrial and Service
Workers International Union (USW), AFL–CIO and Local
9036, The United Steel, Paper, and Forestry, Rubber, Manufac-
turing, Energy, Allied Industrial and Service Workers Interna-
tional Union (USW), AFL–CIO, has been the exclusive bar-
gaining representative of the employees in the Unit.
3. By unilaterally implementing attendance policies on Au-
gust 27, 2012, and September 4, 2012, the Respondent violated
Section 8(a)(5) and (1) of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD24
4. By delaying bargaining from August 17, 2012, to October
17, 2012, the Respondent has violated Section 8(a)(5) and (1)
of the Act.
5. The above unfair labor practices affect commerce within
the meaning of Section 2 (2), (6), and (7) of the Act.
6. The Respondent has not otherwise violated the Act.
REMEDY
Having found that the Respondent 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.
Having found that the Respondent violated Section 8(a)(5)
and (1) of the Act by unilaterally implementing attendance
policies on August 27, 2012, and September 4, 2012, I shall
order the Respondent to rescind those rules and bargain with
the Union about any future implementation of an attendance
policy. I shall also order that the Respondent restore the status
quo which existed at the time of its unlawful unilateral action
by rescinding any disciplinary actions resulting from the im-
plementation of its attendance policies. Production Plated Plas-
tics, Inc. supra. Accordingly, if any employees have been dis-
charged pursuant to these attendance policies, I shall order the
Respondent to offer them full and immediate reinstatement to
their former jobs, or if those jobs no longer exist to substantial-
ly equivalent positions without prejudice to their seniority or
any other rights and privileges previously enjoyed. For any
employees who have been discharged or disciplined pursuant to
these rules I shall order the Respondent to make them whole for
any loss of earnings and other benefits suffered as a result of
the application of the unlawful rules to them. Backpay shall be
computed in the manner set forth in F.W. Woolworth Co., 90
NLRB 289 (1950); with interest at the rate prescribed in New
Horizons, 283 NLRB 1173 (1987); compounded daily as pre-
scribed in Kentucky River Medical Center, 356 NLRB 6 (2010).
Since the Respondent violated Section 8(a)(5) and (1) of the
Act by delaying bargaining, I shall order the Respondent to
meet with the Union, upon request, promptly and at reasonable
times and intervals.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended9
ORDER
The Respondent, First Student, Inc. A Division of First
Group America, Saginaw, Michigan, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Implementing attendance policies without bargaining
with the Union.
(b) Refusing to meet promptly with the Union, on request,
for purposes of collective bargaining.
(c) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed

9 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Rescind the August 27, 2012, and September 4, 2012, at-
tendance policies and, upon request, bargain with the Union
regarding the implementation of any future attendance policy.
The appropriate unit is:
All full-time and regular part-time drivers and monitors em-
ployed by First Student Inc., A Division of First Group Amer-
ica at its Saginaw, Michigan location, but excluding substi-
tutes and temporary drivers and monitors, dispatchers, confi-
dential employees and supervisors as defined in the Act
(b) Within 14 days of the date of the Board’s Order, expunge
from the personnel files of employees all references to discipli-
nary actions which resulted from the failure to comply with the
Respondent’s unilaterally implemented attendance policies and
within 3 days thereafter notify the employees in writing that
this has been done and that the discipline will not be used
against them in any way.
(c) Within 14 days from the date of the Board’s order, offer
any employees discharged pursuant to the unilaterally imposed
attendance policies, immediate and full reinstatement to their
former jobs or, if those jobs no longer exists, to substantially
equivalent positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed.
(d) Make whole employees for any loss of earnings and other
benefits suffered by them as a result of discipline imposed
against them pursuant to the unilaterally implemented attend-
ance policies, in the manner set forth in the remedy section of
the decision.
(e) On request, meet and bargain with the Union and do so
promptly and regularly at reasonable times and intervals.
(f) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment rec-
ords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(g) Within 14 days after service by the Region, post at its fa-
cility in Saginaw, Michigan copies of the attached notice
marked “Appendix.”10 Copies of the notice, on forms provided
by the Regional Director for Region 7, after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous 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

10 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.”
FIRST STUDENT INC., A DIVISION OF FIRST GROUP AMERICA 25
electronic means, if the Respondent customarily communicates
with its employees by such means. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Respondent
has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time
since August 17, 2012.
(h) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.
Dated, Washington, D.C. December 13, 2013.
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 implement attendance policies without bar-
gaining with the United Steel, Paper, and Forestry, Rubber,
Manufacturing, Energy, Allied Industrial and Service Workers
International Union (USW), AFL–CIO and Local 9036, The
United Steel, Paper, and Forestry, Rubber, Manufacturing,
Energy, Allied Industrial and Service Workers International
Union (USW), AFL–CIO (the Union)
WE WILL NOT refuse to meet promptly with the Union, on re-
quest, for purposes of collective bargaining.
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.
WE WILL rescind the August 27, 2012, and September 4,
2012 attendance policies that we unilaterally implemented and
WE WILL, upon request, bargain with the Union regarding the
implementation of any future attendance policy. The appropri-
ate unit is:
All full-time and regular part-time drivers and monitors em-
ployed by First Student Inc., A Division of First Group Amer-
ica at its Saginaw, Michigan location, but excluding substi-
tutes and temporary drivers and monitors, dispatchers, confi-
dential employees and supervisors as defined in the Act.
WE WILL, within 14 days of the Board’s Order, expunge from
the personnel files of employees all references to disciplinary
actions which resulted from the failure to comply with the Re-
spondent’s unilaterally implemented attendance policies and
within 3 days thereafter notify the employees in writing that
this has been done and that the discipline will not be used
against them in any way.
WE WILL within 14 days from the date of the Board’s Order,
offer any employees discharged pursuant to the unilaterally
imposed attendance policies, immediate and full reinstatement
to their former jobs or, if those jobs no longer exists, to sub-
stantially equivalent positions, without prejudice to their senior-
ity or any other rights or privileges previously enjoyed.
WE WILL make whole employees for any loss of earnings and
other benefits suffered by them as a result of discipline imposed
against them pursuant to the unilaterally implemented attend-
ance policies, with interest.
WE WILL, on request, meet and bargain with the Union and
do so promptly and regularly at reasonable times and intervals.
FIRST STUDENT, INC., A DIVISION OF FIRST GROUP
AMERICA
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/07-CA-092212 or by using the QR code be-
low. Alternatively, you can obtain a copy of the decision from the
Executive Secretary, National Labor Relations Board, 1015 Half
Street, S.E., Washington DC 20570, or by calling (202) 273–1940.