Allways East Transportation, Inc., (2017)

NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive 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.

Allways East Transportation, Inc. and International Brotherhood of Teamsters, Local 445. Cases 03–

CA–128669 and 03–CA–133846

May 11, 2017

DECISION AND ORDER

BY CHAIRMAN MISCIMARRA AND MEMBERS PEARCE AND MCFERRAN

On November 12, 2015, Administrative Law Judge Susan A. Flynn issued the attached decision. The General Counsel filed exceptions and a supporting brief, the Respondent filed an answering brief, and the General Counsel filed a reply brief.

The National Labor Relations 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 Order.

The main issue presented in this case is whether the Respondent is a successor employer and, therefore, violated Section 8(a)(5) and (1) of the Act by failing and refusing to recognize and bargain with the Union. The General Counsel further alleges that the Respondent violated Section 8(a)(5) and (1) by unilaterally changing the wage rates of employees, terminating an employee without providing notice and an opportunity to bargain to the Union, and failing to respond to the Union’s request for information. The judge found that the Respondent is not a successor employer and accordingly dismissed the complaint in its entirety.

Contrary to the judge, we find that the Respondent is a successor employer and, consequently, that it violated Section 8(a)(5) and (1) by refusing to recognize and bargain with the Union. We also find that it violated Section 8(a)(5) and (1) by failing to respond to the Union’s information request. However, we conclude that the Respondent did not unlawfully unilaterally change the wage rates of employees. Nor did the Respondent have a duty to bargain with the Union prior to terminating an employee under the circumstances presented here.

¹ The General Counsel has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an administrative law judge’s credibility resolutions unless the clear preponderance 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.

1. SUCCESSORSHIP

   A. Facts

   Since October 2009, the Union has represented a unit of school bus drivers and monitors² employed by Durham School Services in Poughkeepsie, New York.³

   These employees provided transportation services for general and special education students in Dutchess County. In early 2014,⁴ the Dutchess County Department of Health (the “DCDOH”) rescinded the portion of the contract pertaining to the transportation of special education students from Durham and awarded it to the Respondent. It further requested that the Respondent assume operations as soon as possible, due to Durham’s poor performance.

   In order to satisfy the DCDOH’s request for expedited action, the Respondent leased a facility in Wappingers Falls, New York. This facility was located 54 miles from the Respondent’s headquarters in Yonkers, New York, and 8 miles from Durham’s facility in Poughkeepsie. Unlike the Respondent’s Yonkers facility and Durham’s Poughkeepsie facility, the facility leased in Wappingers Falls did not have a maintenance yard; the Respondent’s yard in Yonkers was tasked with maintaining the buses at both locations. To service the new routes in Dutchess County, the Respondent also purchased a fleet of new buses, which were generally of the same type and size as those used by Durham.

   The Respondent’s president, Judith Koller, and her daughter, Vice President Marlaina Koller, held a job fair to recruit new drivers and monitors. The DCDOH encouraged the Respondent to hire drivers who were familiar with the special education students and routes in Dutchess County, and provided it with a list of drivers and monitors who had worked for Durham and their corresponding bus routes. Selected applicants were then interviewed by Vice President Koller, at which time the prospective employees’ wages were discussed.⁵ Ultimately, the Respondent hired 82 school bus drivers and monitors, of whom 62 had previously worked for Durham. Upon hire, the Respondent gave employees its employee handbook. The drivers were assigned bus

   ² Monitors assist bus drivers by helping students during transport.

   ³ Durham also rented a farm field in Red Hook, New York, where approximately five to seven drivers parked their buses overnight. Durham maintained a trailer with a table and chairs for the drivers on that property. The unit description in Durham’s collective-bargaining agreement with the Union references both the Poughkeepsie and Red Hook locations.

   ⁴ All further dates are 2014 unless otherwise indicated.

   ⁵ Wages were matched or increased from Durham, although they were lower than wages the Respondent paid to its drivers in Yonkers.

   routes similar to those they had driven with Durham,⁶ and some retained the same monitor.

   On April 16, the Union, asserting that the Respondent was a successor to Durham, requested in writing that the Respondent recognize and bargain collectively with it for those drivers and monitors based in Wappingers Falls. The Respondent did not respond to that demand and has not recognized or bargained with the Union at any time since.

   The Respondent began operations in Dutchess County on April 22, after the students’ spring break. There was no hiatus in operations after the transfer of work from Durham. From April 22 until the end of the school year in June, additional drivers and monitors were needed in Wappingers Falls, so the Respondent shuttled 8 to 10 drivers and monitors daily from its headquarters in Yonkers to Wappingers Falls.

   Beginning April 22, President Koller worked at the Wappingers Falls facility 4 to 5 days per week to oversee operations and train the dispatchers based there. ToniAnn Francisco, the Respondent’s office manager in Yonkers, similarly worked at the Wappingers Falls facility every day for the first 2 weeks of the Respondent’s operation there, during which time she fine-tuned the drivers’ routes. In addition, the Respondent promoted two drivers from Yonkers to dispatcher positions and permanently assigned them to Wappingers Falls. The dispatchers relay information between drivers, parents, teachers, and management in Yonkers. The dispatchers also ensure that all routes are covered daily, assigning drivers to cover routes due to unexpected absences, and receive requests for leave, which are then transmitted to other individuals for a final decision. Several employees testified that they consider the dispatchers to be their immediate supervisors.⁷

   After the Respondent determined that close supervision was no longer needed at the Wappingers Falls facility, President Koller and Office Manager Francisco returned to their offices in Yonkers, where the Respondent’s management personnel are permanently based. All firing, hiring, and discipline is done by either the president or vice president. All payroll and human resources functions are conducted in Yonkers. Monthly attendance sheets and daily Department of Transportation reports from both locations are retained there too.

   DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

   B. Analysis

   It is well established that an employer is a successor employer, obligated to recognize and bargain with a union representing the predecessor’s employees, when (1) there is a substantial continuity of operations, and (2) a majority of the new employer’s work force, in an appropriate unit, consists of the predecessor’s employees. See NLRB v. Burns Security Services, 406 U.S. 272 (1972); Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27 (1987). The “essence of successorship,” however, “is not premised on an identical re-creation of the predecessor’s customers and business, but rather, on the new employer’s ‘conscious decision to maintain generally the same business and to hire a majority of its employees from the predecessor’ in order ‘to take advantage of the trained work force of its predecessor.’” A. J. Myers & Sons, Inc., 362 NLRB No. 51, slip op. at 7 (2015) (quoting Fall River Dyeing, 482 U.S. at 41).

   Here, the parties stipulated that the operative date to determine successorship is April 22, when the Respondent began providing transportation services for Dutchess County. The parties also stipulated that, on that date, a majority of the drivers and monitors employed at the Respondent’s Wappingers Falls facility were previously employed by Durham. Therefore, there are only two remaining issues to be resolved: (1) whether there is substantial continuity of operations, and (2) whether Wappingers Falls facility employees constitute an appropriate unit for collective bargaining.

   The judge found that the differences between Durham and the Respondent precluded a finding of substantial continuity of operations. She further found that the Respondent successfully rebutted the presumption that Wappingers Falls was an appropriate single-facility bargaining unit. Our dissenting colleague agrees with the judge’s findings. We, however, disagree on both counts.

   With respect to the issue of substantial continuity between predecessor and successor operations, the Supreme Court has identified the following factors as relevant to the analysis: (1) whether the business of both employers is essentially the same; (2) whether the employees of the new company are doing the same jobs in the same working conditions under the same supervisors; and (3) whether the new entity...