Ryder Student Transportation Services, 9 (2001)

Ryder Student Transportation Services, Inc. and School Service Employees Local 284, SEIU.

Case 18-CA-15176

January 12, 2001

DECISION AND ORDER

BY CHAIRMAN TRUESDALE AND MEMBERS LIEBMAN

AND HURTGEN

On August 14, 2000, Administrative Law Judge C. Richard Miserendino issued the attached decision. The Respondent filed exceptions and a supporting brief, and the Charging Party filed an answering brief.

The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,1 and conclusions2 and to adopt the recommended Order.

ORDER

The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Ryder Student Transportation Services, Inc., its officers, agents, successors, and assigns, shall take the action set forth in the Order. Nichole L. Burgess, Esq., for the General Counsel.

Richard H. Allen Jr., Esq., of Memphis, Tennessee, for the

Respondent.

Bruce P. Grostephan, Esq., of Minneapolis, Minnesota, for the

Charging Party.

1 The Respondent 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.

In adopting the judge's findings that the Respondent violated Sec. 8(a)(1) by statements at its May 1999 Burnsville and Como terminal town hall meetings, Member Hurtgen finds it unnecessary to rely on the adverse inferences the judge drew against the Respondent for failing to call corroborative management witnesses.

2 In adopting the judge's finding that the Respondent unlawfully en-forced its unwritten no-solicitation/no-distribution rule, Member Hurtgen notes that the "female organizer" referred to by the judge in "Sec.

4. Analysis and findings" was an employee of the Respondent's Snelling facility who was handbilling at another of the Respondent's facilities. Member Hurtgen further notes that the employees of the various Minneapolis/St. Paul metro terminals against whom the Respondent applied its no-solicitation/no-distribution rule are part of a single appropriate unit. See Eagle-Picher Industries, 331 NLRB No. 14, slip op. at 2, fn. 2 (2000).

   DECISION

   STATEMENT OF THE CASE

   C. RICHARD MISERENDINO, Administrative Law Judge. This case was tried in Minneapolis, Minnesota, on April 4, 2000. The charge was filed by the School Service Employees Local 284, SEIU (Union) against Ryder Student Transportation Services, Inc. (Respondent)1 on April 12, 1999,2 and was amended on January 10, 2000. The complaint was issued on January 27, 2000. 3

   The Respondent has an unwritten no-access policy that prohibits employees from entering the property of a terminal where they do not work and from entering the property of their own work terminal at times they are not scheduled to work. In the Minneapolis/St. Paul area, the Respondent has 11 terminals that provide bus service for transporting children to and from school. In March 1999, the Union commenced an organizing campaign at these terminals. On various dates and at various times in March-April 1999, the Respondent sought to prohibit employees from distributing union literature at terminals where they did not work in accordance with its unwritten no-access rule. Thus, the complaint alleges that the Respondent violated Section 8(a)(1) of the Act by promulgating, maintaining, and enforcing an unlawful unwritten no-access rule.4

   In May 1999, in the course of the organizing campaign, the Respondent held several "town hall" meetings to oppose the Union and to answer employee questions. The complaint alleges that at two of these meetings the Respondent's supervisors/agents promised benefits if the Union was not elected, threatened that it would not bargain in good faith, and threatened that bargaining would be futile. Thus, the complaint alleges that the Respondent violated Section 8(a)(1) of the Act by

   1 The unrebutted evidence shows that in July 1999, First Student Tranportation acquired Ryder Student Transportation Services, Inc. (Tr. 24.)

   2 All dates are in 1999, unless otherwise indicated.

   3 At trial, the parties stipulated that on April 15, 1999, the Union filed a petition in Case 18-RC-16461 to represent the school bus drivers, aides, and wash rack employees at the Respondent's Minneapolis/St. Paul metro area terminals. On May 26 and 27, 1999, an election was conducted which the Union lost 664 to 723. In addition, the General Counsel asserts in her posthearing brief at pp. 2-3 that the Union filed objections to the results of the election, that the Regional Director found the conduct to be objectionable, and that he recommended that the election be set aside. The General Counsel further asserts that the Respondent appealed, and that the Regional Director's recommendation was pending before the Board at the time the briefs were submitted. However, there is no evidence in the record, other than the parties' brief stipulation, pertaining to the representation case nor was that case consolidated with the instant unfair labor practice case for hearing. I therefore deny the General Counsel's request to take administrative notice of the representation case proceedings.

   4 At trial, the General Counsel's unopposed motion to amend par. 4 of the complaint and all subsequent paragraphs consistent with the amendment was granted to add the following names: Tom Larson, Jim Berneche, and Jeff Cain. The Respondent was also permitted to amend par. 4 of its answer to admit that Lawrence McDonald, Bruce Dischinger, Dan Berg, David Brabender, Tom Larson, and Jim Berneche are supervisors and agents of the Respondent within the meaning of Sec. 2(11) and (13) of the Act.

   interfering with, restraining, and coercing employees in the exercise of their Section 7 rights.

   The Respondent's timely filed answer denied the material allegations of the complaint.

   On the entire record, including my observation of the demeanor of the witnesses, and after considering the briefs filed by the General Counsel and the Respondent,5 I make the following

   FINDINGS OF FACT

   1. JURISDICTION

      The Respondent, a corporation with a principal place of business in St. Paul, Minnesota, and additional terminals in the St. Paul/Minneapolis, Minnesota area, is engaged in the bus transportation of school children. During the calendar year ending December 31, 1999, in the course of conducting its bus operations, it purchased and received at the above-referenced terminals goods valued in excess of $50,000 directly from points outside the State of Minnesota and received gross revenues in excess of $250,000. The Respondent admits and I find that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.

      The Respondent also admits and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act.

   2. ALLEGED UNFAIR LABOR PRACTICES

      A. The Respondent's Unwritten No-access Policy

      The undisputed evidence shows that since early 1990, the Respondent has had an unwritten no-access policy that prohibits employees from entering the property of a terminal where they do not work and from entering the property of their own work terminal at times they are not scheduled to work.6 According to Lawrence McDonald, the Respondent's director of labor relations, the policy was promulgated for security and safety reasons and to reduce workplace violence. He did not elaborate on the issue. McDonald did not state that there had been a problem that needed to be addressed or that the unwritten policy was promulgated as a preventative measure. In any event, in the last 10 years, circumstances have not prompted the Respondent to reduce the policy to writing and widely publicize it. (Tr. 191.)

      Instead, the evidence shows that the unwritten policy has not been widely disseminated among the employees. Contract Manager Dave Brabender could not explain how the policy was conveyed to employees. (Tr. 176.) He conceded that unless an employee was told about the unwritten no-access policy, the employee would not know that there was a policy or whether

      5 The Respondent also filed a posthearing motion requesting leave to file a reply brief that was denied on the grounds that such briefs are not provided for by the Board's Rules and Regulations. The reply brief has not been reviewed and/or considered. The paragraphs of the motion pointing out various alleged inaccuracies and alleged misrepresentations in the General Counsel's posthearing brief has not been considered in determining the issues in this case.

      6 The Respondent also has a written no-solicitation policy in its employee handbook that prohibits employees from soliciting and distributing literature during work hours and in work areas. (R. Exh. 1.) This written rule is not the subject of any allegation in the complaint.

      his conduct was permissible under the policy. (Tr. 177.) Although he testified that the rule applied to any type of activity (Tr. 150), Brabender stated that in 1999, he did not tell any employees about the policy other than those involved in the union campaign. He further conceded that between 1990-1991, he could not remember telling any employees about the unwritten policy, other than employees involved in another union organizing campaign. 7 (Tr. 177.)

      In Tri-County Medical Center, 222 NLRB 1089 (1976), the Board held that a no-access rule applying to off-duty employees is valid if it:

      (1) limits access solely with respect to the interior of the plant and other working areas; (2) is clearly disseminated to all employees; and (3)...