A.J. Myers and Sons,
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.
A.J. Myers and Sons, Inc. and Amalgamated Transit Union, Local 1738, AFL–CIO, CLC. Case 06– CA–119505
March 27, 2015
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA AND MCFERRAN
On October 3, 2014, Administrative Law Judge David
Goldman issued the attached decision. The Respondent filed exceptions and a supporting brief, the General Counsel filed an answering brief, and the Respondent 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 and to adopt the recommended Order.
The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, A.J. Myers and Sons, Inc., Kittanning, Pennsylvania, its officers, agents, successors, and assigns, shall take the action set forth in the Order. Dated, Washington, D.C. March 27, 2015
Mark Gaston Pearce, Chairman
Philip A. Miscimarra, Member
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
1 Regarding the Respondent’s argument that there was insufficient continuity in the business to render the Respondent a successor employer under NLRB v. Burns Security Services, 406 U.S. 272 (1972), Member Miscimarra agrees that the judge properly found that the instant case is factually distinguishable from Nova Services Co., 213 NLRB 95 (1975); Atlantic Technical Services Corp., 202 NLRB 169 (1973), enfd. sub nom. Machinists v. NLRB, 498 F.2d 680 (D.C. Cir. 1974); and Lincoln Private Police, Inc., 189 NLRB 717 (1971). However, Member Miscimarra does not adopt or rely on the judge’s commentary that these cases depart from the Board’s successorship doctrines or should be deemed inapplicable because they were decided prior to Fall River Dyeing Corp. v. NLRB, 482 U.S. 27 (1987).
Emily M. Sala, Esq. and Patricia J. Daum, Esq., for the General
Kenneth S. Kornacki, Esq. and John B. Bechtol, Esq. (Metz
Lewis Brodman Must O’Keefe LLC), of Pittsburgh, Pennsylvania, for the Respondent.
Timothy G. Hewitt, Esq., of Latrobe, Pennsylvania, for the
DAVID I. GOLDMAN, Administrative Law Judge. This case involves an employer that provides bus transportation for several school districts in western Pennsylvania. For the 2013– 2014 school year, the Employer was awarded a contract to provide schoolbus transportation for the Latrobe, Pennsylvaniaarea school district. In previous years the Latrobe schools had been serviced by another bus transportation employer. This predecessor employer serviced the Latrobe school district with union represented employees who worked at the predecessor’s bus terminal in Latrobe. In order to service its new contract with the Latrobe schools, the new Employer hired almost exclusively from the predecessor’s union represented bargaining unit. The new Employer purchased a terminal near the
362 NLRB No. 51
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
issued a complaint alleging that A.J. Myers violated the Act.
A.J. Myers filed an answer denying all alleged violations of the Act.
A trial was conducted in this matter on July 23, 2014, in Pittsburgh, Pennsylvania. Counsel for the General Counsel and counsel for A.J. Myers filed excellent posttrial briefs in support of their positions by August 26, 2014. On the entire record, I make the following findings, conclusions of law, and recommendations.
A.J. Myers is a corporation with its headquarters located in Kittanning, Pennsylvania. It is engaged in furnishing school student transportation services to school districts located in western Pennsylvania, including the Greater Latrobe Area School District. In conducting its operations, during the 12-month period ending November 30, 2013, A.J. Myers derived gross revenues in excess of $250,000 and during this same period in conducting its operations purchased and received goods valued in excess of $50,000 directly from points outside the Commonwealth of Pennsylvania. At all material times A.J. Myers has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. At all material times the Union has been a labor organization within the meaning of Section 2(5) of the Act.
Based on the foregoing, I find that this dispute affects commerce and that the Board has jurisdiction of this case, pursuant to Section 10(a) of the Act.
Unfair Labor Practices
Respondent A.J. Myers is in the business of contracting with school districts for transportation of students to and from school and for other school-related events. The Company currently operates a total of approximately 500 buses from six terminals, and serves a number of school districts in the Greater Pittsburgh region of Pennsylvania. According to counsel’s representation, this Employer has had no collective-bargaining history with any union in the 65-year history of the Company.
In or about November 2012, the Latrobe school district notified A.J. Myers that it was the successful bidder for and was being awarded the contract to provide student transportation beginning with the 2013–2014 school year. Effective on or about July 1, 2013, A.J. Myers entered into a 7-year contract with the Latrobe schools to provide student transportation services through 2020. This contract was for regular schoolbus service transporting children from home to school and back. It did not include special needs services or services for parochial schools.
For a number of previous school years, transportation for the Latrobe school district was provided by First Student Inc. (First Student). The record suggests that First Student’s contract also included special needs and parochial school services for the Latrobe district.
First Student operated a terminal located on Route 981 in Latrobe, from which it serviced the Latrobe school district. Pursuant to a representation election and Board certification, the Union (and/or its predecessor) has represented employees working at the Route 981 terminal since 1996, originally for an employer (or perhaps two) that preceded First Student. The
Union and First Student were parties to a collective-bargaining agreement—in effect from August 15, 2010, to August 14, 2013—covering the terms and conditions of employees working at the Route 981 facility, as well as a yard located in Greensburg, Pennsylvania, and a “small park” in the Jeanette, Pennsylvania area.1
During the time that First Student maintained the contract to provide transportation services for the Latrobe school district, the employees providing this transportation worked from First Student’s Route 981 facility.2
The record is not specific, but approximately 150 employees worked under the First Student labor agreement covering the Route 981 facility and the associated Greensburg yard and Jeanette park. By way of comparison, the Jeanette park had approximately eight buses. The Route 981 facility had approximately 100 buses.
At the request of the Latrobe school district, near the end of the 2012–2013 school year, A.J. Myers provided job applications to the school district which provided them to the First Student drivers transporting the district’s students. That summer A.J. Myers received those applications back from prospective drivers and conducted interviews. Approximately “70-plus” First Student employees left First Student— approximately 51 were hired by A.J. Myers and the remainder, quit or retired, or otherwise moved on.
There was no interruption in school transportation services provided to the Latrobe schools between the time that it was serviced by First Student and July 1, 2013, when A.J. Myers entered into the contract and commenced provision of services to the school district.
As of about August 19, 2013, A.J. Myers had hired nearly all of the employees that it would need to service its contract with the Latrobe School District, including supervisors, bus operators and mechanics. Of the approximately 52 operators hired to service its contact with the Latrobe schools, all but 1 had worked as a bargaining unit driver for First Student at the Route 981 terminal during the previous school year. Six additional drivers were hired in fall 2013 and winter 2014. Five had previously worked for First Student at the Route 981 terminal. In addition to the drivers, two mechanics have been employed since at least November 2013. There is also office staff per
1 The union recognized bargaining unit set forth in the labor agreement was as follows:
All full-time, and Regular part-time bus Employees, Spare bus Employees, Van Employees, Utility Worker, and Monitors, employed by the Employer at its Latrobe facility, 5947 Route 981, Latrobe, Pennsylvania, 15650, and all other facilities under the direction of or replacement of the Latrobe facility; excluding mechanics, dispatchers, laborers, office clerical employees, guards, professional employees, supervisors as defined in the act, for the purpose of Collective Bargaining in respect to rates of pay, wages, hours of employment, and all other conditions of employment and agrees to deal with it as hereinafter provided.
2 In addition, employees working under this labor agreement provided transportation for the Greensburg Salem school district, the Jeannette City school district, Seton Hill University, an area Catholic school, as well as servicing approximately five to eight...
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