Allways East Transportation, Inc.

National Labor Relations Board - Board Decisions

May 11, 2017

365 NLRB No. 71 (N.L.R.B. 2017)

365 NLRB No. 71
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.
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 Re-
spondent filed an answering brief, and the General Coun-
sel 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, find-
ings,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, vio-
lated 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 vio-
lated Section 8(a)(5) and (1) by unilaterally changing the
wage rates of employees, terminating an employee with-
out 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 bar-
gain with the Union. We also find that it violated Sec-
tion 8(a)(5) and (1) by failing to respond to the Union’s
information request. However, we conclude that the Re-
spondent 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 em-
ployee under the circumstances presented here.

1 The General Counsel has excepted to some of the judge’s credibil-
ity findings. The Board’s established policy is not to overrule an ad-
ministrative law judge’s credibility resolutions unless the clear prepon-
derance 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.
I. 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 Coun-
ty. In early 2014,4 the Dutchess County Department of
Health (the “DCDOH”) rescinded the portion of the con-
tract pertaining to the transportation of special education
students from Durham and awarded it to the Respondent.
It further requested that the Respondent assume opera-
tions as soon as possible, due to Durham’s poor perfor-
mance.
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 en-
couraged the Respondent to hire drivers who were famil-
iar 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 cor-
responding bus routes. Selected applicants were then
interviewed by Vice President Koller, at which time the
prospective employees’ wages were discussed.5 Ulti-
mately, 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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
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 Yon-
kers 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. Toni-
Ann Francisco, the Respondent’s office manager in Yon-
kers, similarly worked at the Wappingers Falls facility
every day for the first 2 weeks of the Respondent’s oper-
ation there, during which time she fine-tuned the drivers’
routes. In addition, the Respondent promoted two driv-
ers from Yonkers to dispatcher positions and permanent-
ly 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 cov-
er routes due to unexpected absences, and receive re-
quests for leave, which are then transmitted to other indi-
viduals for a final decision. Several employees testified
that they consider the dispatchers to be their immediate
supervisors.7
After the Respondent determined that close supervi-
sion was no longer needed at the Wappingers Falls facili-
ty, President Koller and Office Manager Francisco re-
turned to their offices in Yonkers, where the Respond-
ent’s management personnel are permanently based. All
firing, hiring, and discipline is done by either the presi-
dent 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.

6 The number of routes increased from 52 to 65. As a result, some
drivers had a different number of stops and/or transported a different
number of students. However, any resulting changes were relatively
minor, and all routes still served Dutchess County schools.
7 The Respondent did not hire any former supervisors from Durham.
B. Analysis
It is well established that an employer is a successor
employer, obligated to recognize and bargain with a un-
ion 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 appro-
priate 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 predeces-
sor’s customers and business, but rather, on the new em-
ployer’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) (quot-
ing Fall River Dyeing, 482 U.S. at 41).
Here, the parties stipulated that the operative date to
determine successorship is April 22, when the Respond-
ent 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 sub-
stantial continuity of operations, and (2) whether Wap-
pingers 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 Re-
spondent successfully rebutted the presumption that
Wappingers Falls was an appropriate single-facility bar-
gaining unit. Our dissenting colleague agrees with the
judge’s findings. We, however, disagree on both counts.
With respect to the issue of substantial continuity be-
tween predecessor and successor operations, the Su-
preme Court has identified the following factors as rele-
vant to the analysis: (1) whether the business of both
employers is essentially the same; (2) whether the em-
ployees of the new company are doing the same jobs in
the same working conditions under the same supervisors;
and (3) whether the new entity has the same production
process, produces the same products, and basically has
the same body of customers. Fall River Dyeing, supra,
482 U.S. at 43. Most importantly, these factors are to be
analyzed from the perspective of the employees, i.e.,
whether they “‘understandably view their job situations
as essentially unaltered.’” Id. (quoting Golden State Bot-
tling Co., 414 U.S. 168, 184 (1973)).
ALLWAYS EAST TRANSPORTATION, INC. 3
Applying the relevant factors, we find that there is
substantial continuity of operations. First, Durham and,
later, the Respondent performed the same general busi-
ness service: providing school bus transportation for the
special education students in Dutchess County.8 The
drivers and monitors are doing the same general job:
transporting special education students to and from
Dutchess County schools by school bus on a predeter-
mined route. In many cases, pursuant to Dutchess Coun-
ty’s request, the drivers are paired with the same moni-
tors, drive similar routes, and transport many of the same
students. Accordingly, by all evidence, the drivers and
monitors are doing the same job as before and without
any hiatus in operations, only now their employer is the
Respondent, not Durham. See A. J. Myers & Sons, Inc.,
362 NLRB No. 51, slip op. at 7; Van Lear Equipment,
Inc., 336 NLRB at 1063–1064; Montauk Bus Co., 324
NLRB 1128, 1135 (1997).
We acknowledge that there are some minor differences
in the Respondent’s operations and in the employees’
terms and conditions of employment. For instance, the
Respondent has a new facility, different supervisors,
wages, fueling procedures, and employee handbook poli-
cies. Nevertheless, from the perspective of the drivers
and monitors who had been handling special education

8 Contrary to the dissent’s position, the fact that Durham’s business
also encompassed providing school bus services for the general school
population in Dutchess County has no bearing on the question whether
the business of both operations is essentially the same, as the relevant
inquiry pertains only to the part of the business taken over by the al-
leged successor. Under the dissent's view, if a large conglomerate sold
off a portion of its business, the new employer would never be found to
be a successor, as it would be operating only a distinct part of the sell-
er’s overall business. This conflicts with well-established Board law
that “the operation of just a portion of a predecessor's business is con-
sistent with successorship.” A. J. Myers, 362 NLRB No. 51, slip op. at
7–8; accord: Van Lear Equipment, Inc., 336 NLRB 1059, 1064 (2001);
Bronx Health Plan, 326 NLRB 810, 812 (1998); Roman Catholic Dio-
cese of Brooklyn, 222 NLRB 1052, 1054 fn. 13 (1976). As the Second
Circuit Court of Appeals held in NLRB v. Simon DeBartelo Group, 241
F.3d 207, 212–213 (2001), “The Board’s holding [ ] is consistent with a
long line of Board decisions finding substantial continuity when the
successor employer has taken over only a discrete portion of its prede-
cessor’s heterogeneous bargaining unit.,” enfg. 325 NLRB 1154
(1998). Furthermore, contrary to the dissent, the fact that the Respond-
ent specializes in—and may in fact be better than Durham at—
providing special education transportation services would have no
meaningful significance for employees continuing to do essentially the
same job contracted by the DCDOH for the same special education
student population as before. They never performed the service of
merely transporting general education students from Point A to Point B,
as the dissent wrongly presumes. Moreover, the Respondent neither
argued nor presented evidence establishing that any of the unit employ-
ees whom it hired had ever driven general education routes. Indeed, the
record reflects that monitors only served on special education routes,
and that the special education drivers received different training from
the general education drivers.
transportation for Durham, their job remained essentially
unchanged. See A. J. Myers & Sons, Inc., 362 NLRB
No. 51, slip op. at 7 (differences in buses, location, and
supervision did not defeat finding of continuity of opera-
tions); Montauk Bus Co., 324 NLRB at 1134 (finding
substantial continuity despite “some differences in the
way Montauk operates and also differences in the wages
and terms and conditions of employment”). When
viewed from the employees’ perspective, these minor
operational changes made by the Respondent would not
so change employees’ job situation “that they would
change their attitudes about being represented.” Van
Lear Equipment, Inc., 336 NLRB at 1064 (internal quo-
tation omitted). Accordingly, we find that there is sub-
stantial continuity of operations.9
As to the appropriate-unit issue, the Board has long
recognized the “presumption that a single plant or store
unit is appropriate for purposes of collective bargaining
unless it has been so effectively merged into a compre-
hensive unit, or is so functionally integrated, that it has
lost its separate identity.” Dean Transportation, Inc.,
350 NLRB 48, 58 (2007), enfd. 551 F.3d 1055 (D.C. Cir.
2009). The party opposing the single-facility unit has the
heavy burden of rebutting its presumptive appropriate-
ness. Trane, 339 NLRB 866, 867 (2003). To determine
whether the presumption has been rebutted, the Board
examines a number of community-of-interest factors: (1)
central control over daily operations and labor relations,
including the extent of local autonomy, (2) similarity of
skills, functions, and working conditions, (3) degree of
employee interchange, (4) distance between locations,
and (5) bargaining history, if any. J&L Plate, 310 NLRB
429, 429 (1993).
We find that the judge improperly analyzed the com-
munity of interest between the employees at the Re-
spondent’s two facilities without first giving sufficient
weight to the presumption that the single facility of for-
mer Durham employees at Wappingers Falls was appro-
priate, before determining whether the Respondent met

9 That the Respondent set initial terms and conditions of employ-
ment for employees providing special education transportation for
Dutchess County that contained minor variations from what employees
enjoyed under Durham in no way undermines our “continuity of opera-
tions” finding. It is well settled that a successor is ordinarily free to set
the terms and conditions of employment on which it will hire the pre-
decessor’s employees, Burns, 406 U.S. at 294–295, thus establishing
the baseline for future bargaining with the incumbent union that contin-
ues to represent them. The dissent’s contrary view that a successor’s
exercise of this right to make even relatively minor initial changes in
terms and conditions of employment, as occurred here, extinguishes the
Burns continuing bargaining obligation, cannot be reconciled with the
balancing of employee, incumbent union representative, and employer
rights in the successorship doctrine established by Burns and Fall River
Dyeing.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
its rebuttal burden. We emphasize that “[t]he determina-
tion of appropriateness of a unit is different in the context
of successorship than when determining initially, in a
representation case, whether an unrepresented group of
employees should be included in a single or multiplant
unit.” Dean Transportation, Inc., 350 NLRB at 58. In
addition, the single-facility presumption is particularly
strong where employees had historically been represent-
ed in a single-location unit, as was the case here. Id.10
In addition, the judge’s analysis of the appropriateness
of the single-facility unit of former Durham employees at
Wappingers Falls was flawed by her focus on the bar-
gaining history at the Respondent’s preexisting Yonkers
location. Thus, the judge relied on the fact that “[t]here
is no bargaining history at [the Respondent], as the Com-
pany has always been nonunion.” Instead, the judge
should have focused on the bargaining history at the pre-
decessor employer, Durham, where the Union had repre-
sented the unit in Poughkeepsie since 2009. “[T]his fact
alone suggests the appropriateness of a separate bargain-
ing unit.” A. J. Myers & Sons, Inc., 362 NLRB No. 51,
slip op. at 9 (internal quotations omitted).11 By examin-
ing the bargaining history at the wrong location, and be-
tween the wrong parties, the judge failed to give appro-
priate weight to the presumption of an appropriate unit,
and the need for “compelling circumstances” before the
significance of bargaining history can be overcome. Id.
Examining the remaining community-of-interest fac-
tors as of April 22, the relevant date as stipulated to by
the parties, we find that the Respondent has failed to
meet its heavy burden of rebutting the presumption that a
unit based at the Wappingers Falls facility is an appro-
priate bargaining unit. The judge found that the Re-
spondent’s centralized control over labor relations favors
the Respondent’s position, emphasizing that all person-

10 We disagree with the Respondent and our dissenting colleague
that the predecessor Durham unit should be deemed a multifacility unit
based on the existence of the Red Hook location in addition to the main
facility at Poughkeepsie. No work was based in Red Hook and no
managers or dispatchers were stationed there; it was merely a conven-
ient rest stop provided to a small number of employees. For all practi-
cal purposes, the Durham unit was a single-facility unit at Poughkeep-
sie, which strengthens the case for continued representation as a single-
facility unit. Van Lear Equipment, Inc., 336 NLRB at 1063; see also
Montauk Bus Co., 324 NLRB at 1135 (“there is a strong presumption
favoring the maintenance of historically recognized bargaining units” in
a successorship case, citing Trident Seafoods, Inc. v. NLRB, 101 F.3d
111, 114 (D.C. Cir. 1996)). However, even if it were to be character-
ized as a multifacility unit, we still would find the postsuccessorship
unit at Wappingers Falls appropriate based on all of the other circum-
stances, including the unit’s history of meaningful bargaining.
11 Unlike our dissenting colleague, we continue to adhere to the
Board’s long-held view that collective-bargaining history is an im-
portant factor when determining whether a proposed unit is appropriate
in successorship cases.
nel matters and payroll are conducted in Yonkers and
that the managers who have the authority to hire, fire,
grant raises, and approve leave requests are permanently
headquartered there. Although we agree that certain as-
pects of the Respondent’s operations are centralized, we
conclude that there is sufficient local autonomy to find
that this factor does not weigh in favor of rebutting the
single-facility presumption.
As an initial matter, we note that the president and an
office manager were working at the Wappingers Falls
facility on April 22. The president oversaw the day-to-
day operations of the facility, trained the dispatchers, and
had complete authority over personnel matters. The of-
fice manager fine-tuned the busing routes. The Re-
spondent also has two dispatchers who are permanently
based in Wappingers Falls.12 On April 22, they were
being trained to oversee the daily performance of the
drivers and monitors once the president and the office
manager eventually returned to Yonkers full time. The
dispatchers are responsible for assigning and dispatching
spare drivers when regular drivers are unexpectedly ab-
sent, and fielding notices of absences and requests for
time off. The dispatchers also serve as the primary point
of contact for schools and parents. With regard to this
authority, several employees testified that they consider
the dispatchers to be their immediate supervisors. In
circumstances similar to those here, the Board has previ-
ously found that a bus facility with management that
oversaw day-to-day operations demonstrated “substantial
authority of local management.” Montauk Bus Co., 324
NLRB at 1135.13
Other community-of-interest factors also support the
single-facility presumption. The Respondent’s Wap-
pingers Falls facility is geographically distant, approxi-
mately 54 miles, from its Yonkers facility. See Van Lear
Equipment, Inc., 336 NLRB at 1063 (distance of 25
miles between facilities, inter alia, supported single-
facility presumption). Employee interchange between
Wappingers Falls and Yonkers was limited, and in one
direction. For the remainder of the 2013–2014 school
year, a small number of employees were temporarily
transferred from Yonkers to Wappinger Falls to drive an
unknown percentage of routes; no employees were trans-
ferred, temporarily or permanently, from Wappinger

12 The General Counsel alleges the dispatchers are agents under Sec.
2(13) of the Act. Given our finding above, we find it unnecessary to
pass on this allegation because it would not affect our decision.
13 We disagree with our dissenting colleague’s characterization of
the dispatchers as mere conduits for information. Further, to the extent
that the record is lacking, as suggested by our dissenting colleague, that
failure must be held against the Respondent, which bears the heavy
burden of proving that a single-facility unit based in Wappingers Falls
is inappropriate.
ALLWAYS EAST TRANSPORTATION, INC. 5
Falls to Yonkers.14 There is no evidence of any tempo-
rary interchange after that initial period; nor is there any
evidence of permanent interchange between the drivers
and monitors at the two facilities at any time. See New
Britain Transportation Co., 330 NLRB 397, 398 (1999).
The factor regarding similarity of skills and working
conditions favors the Respondent’s position, as the em-
ployees at Wappingers Falls and Yonkers share common
skills, are required to possess the same safety certifica-
tions, and perform similar functions. We find, however,
that this factor is insufficient to rebut the presumption
that a unit of drivers and monitors at the Wappingers
Falls facility is an appropriate single-facility unit.15
C. Conclusion
Because we find that a unit of drivers and monitors in
Wappingers Falls constitutes an appropriate bargaining
unit and that there is substantial continuity of operations
between the Respondent and Durham, we conclude that
the Respondent is a successor employer. We therefore
find that the Respondent violated Section 8(a)(5) and (1)
by failing to recognize and bargain with the Union as the
exclusive collective-bargaining representative of the
drivers and monitors employed by the Respondent in
Wappingers Falls.16
II. CHANGE TO WAGE RATES
A successor employer is ordinarily free to establish
initial terms of employment without first bargaining with
the incumbent union, unless it is a perfectly clear succes-
sor. Burns, 406 U.S. at 294–295. Because there is no
allegation that the Respondent is a perfectly clear succes-
sor employer under Spruce Up Corp., 209 NLRB 194

14 Unlike our dissenting colleague, we assign little evidentiary value
to this data, given its lack of context. See New Britain Transportation
Co., 330 NLRB 397, 398 (1999).
15 Contrary to the judge and our dissenting colleague, we find that
the present case is unlike Dattco, Inc., 338 NLRB 49 (2002), where the
Board found that the single-facility presumption had been rebutted. In
that case, the Board found a single bus facility to be so completely
integrated with several other terminals that it was an inappropriate
bargaining unit. In reaching that conclusion, the Board emphasized the
highly centralized control over daily operations and the fact that fully
one-third of the bus drivers were shuttled from their home facilities to
other facilities on a daily basis. Upon arriving at the new facility, driv-
ers were then supervised by managers based at that other facility. Here,
by contrast, there was minimal and insubstantial interchange of em-
ployees, and the local dispatchers had authority over day-to-day opera-
tions at the Wappingers Falls facility, including the ability to reassign
drivers to Dutchess County routes based on daily needs.
16 The transcript reflects that the Respondent may have relocated its
facility from Wappingers Falls to Fishkill, New York, prior to the start
of the hearing. No party has asked us to modify the unit description to
reflect this relocation, and we decline to do so sua sponte based on the
record before us.
(1974), enfd. mem. 529 F.2d 516 (4th Cir. 1975), it was
free to set the initial wage rates of drivers and monitors.
Although the General Counsel concedes that the Re-
spondent was free to set initial terms, he alleges that the
Respondent unlawfully unilaterally changed the employ-
ees’ wages on or about April 22. The General Counsel’s
theory for this allegation is not entirely clear, but he ap-
pears to contend that when the Respondent set initial
terms, it failed to inform the former Durham employees
that those terms included changed wages. Therefore, the
Respondent’s subsequent decision to set a different ini-
tial wage rate without first consulting the Union amount-
ed to an unlawful unilateral change. See 301 Holdings,
LLC, 340 NLRB 366, 367 (2003). Even assuming, ar-
guendo, that the General Counsel has articulated a viable
legal theory, we find that he has failed to present suffi-
cient evidence in support of it. What little evidence ex-
ists on this point supports a contrary finding that em-
ployees did know their initial wage rates would be dif-
ferent.17 We therefore adopt the judge’s dismissal of this
allegation.
III. FAILURE TO ENGAGE IN PRE-DISCIPLINE BARGAINING
The Respondent admits that it terminated Wappingers
Falls driver Sherry Siebert on May 1, without affording
the Union notice and an opportunity to bargain over the
decision. Relying on the rationale articulated in Alan
Ritchey, Inc., 359 NLRB 236 (2012), the General Coun-
sel argues that the Respondent should have provided the
Union with notice and an opportunity to bargain prior to
terminating Seibert. Although Alan Ritchey was invali-
dated by the Supreme Court due to the composition of
the Board at the time,18 in Total Security Management,
364 NLRB No. 106(2016), the Board held that employ-
ers must provide unions with notice and the opportunity
to bargain prior to the implementation of all discharges,
demotions and suspensions. The Board held, however,
that this decision was not to be applied retroactively. As
a result, under the circumstances presented here, the Re-
spondent had no duty to bargain with the Union prior to
discharging Siebert. We therefore adopt the judge’s
dismissal of this allegation.19

17 A driver testified that she brought a paystub to her interview and
that she understood at that time that she would be receiving a raise.
Another driver similarly testified that he brought a pay stub from
Durham to his interview and went over “pay stuff” with Vice President
Koller.
18 See NLRB v. Noel Canning, 134 S.Ct. 2550 (2014).
19 Although Total Security Management is inapplicable with respect
to the discharge at issue in this case, which occurred before the Board’s
decision issued, the decision naturally applies to the Respondent’s
discretionary disciplinary decisions arising after Total Security Man-
agement was issued.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
IV. FAILURE TO RESPOND TO INFORMATION REQUEST
On July 18, after discovering that Siebert had been
terminated, the Union requested via email a list of all
employees who had been terminated since April 22. The
Respondent did not reply to the email or provide the re-
quested information. An employer is obligated to pro-
vide a union with requested information that is relevant
to the union’s proper performance of its collective-
bargaining obligations. See Boeing Co., 363 NLRB No.
63, slip op. at 6 (2015). The Respondent does not dis-
pute this principle. Instead, it repeats its argument (re-
jected above) that it had no duty to respond to the infor-
mation request because it was not a successor employer.
The General Counsel contends that, without such infor-
mation, the Union would not know which employees
remained in the bargaining unit, thus preventing it from
carrying out its representative duties. We agree with the
General Counsel, and find that the requested information
is clearly relevant and that the Respondent violated Sec-
tion 8(a)(5) and (1) by failing and refusing to furnish it to
the Union. See Pepsi-Cola Bottling Co., 315 NLRB 882,
882, 901 (1994), enfd. in relevant part 96 F.3d 1439 (4th
Cir. 1996) (list of all terminated employees relevant and
necessary for union to adequately represent employees).
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. International Brotherhood of Teamsters, Local 445
is a labor organization within the meaning of Section
2(5) of the Act.
3. The following employees of the Respondent, All-
ways East Transportation, Inc., constitute a unit appro-
priate for purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All full-time and regular part-time drivers and monitors
employed by Allways East Transportation, Inc. at its
228 Myers Corners Road, Wappingers Falls, New
York location; excluding office clerical employees,
dispatchers, assistant dispatchers, safety trainers, me-
chanics, guards, and supervisors and professional em-
ployees as defined in the Act.
4. Since April 22, 2014, the Respondent violated Sec-
tion 8(a)(5) and (1) of the Act by failing and refusing to
recognize and bargain collectively with the Union as the
collective-bargaining representative of the above-
described unit of employees.
5. Since July 18, 2014, the Respondent violated Sec-
tion 8(a)(5) and (1) of the Act by refusing to bargain col-
lectively with the Union by failing and refusing to fur-
nish it with requested information that is relevant and
necessary to the Union’s performance of its functions as
the collective-bargaining representative of the Respond-
ent’s unit employees.
6. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
REMEDY
Having found that the Respondent engaged in certain
unfair labor practices, we order it to cease and desist and
to take certain affirmative action designed to effectuate
the policies of the Act. Specifically, the Respondent
shall be ordered to recognize and, on request, bargain
with the Union as the collective-bargaining representa-
tive of the drivers and monitors based in Wappingers
Falls. In addition, we shall order the Respondent to pro-
vide the Union with the information requested on July
18, 2014.
ORDER
The National Labor Relations Board orders that the
Respondent, Allways East Transportation, Inc., Yonkers,
New York, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with
the Union as the exclusive collective-bargaining repre-
sentative of the employees in the bargaining unit.
(b) Refusing to bargain collectively with the Union by
failing and refusing to furnish it with requested infor-
mation that is relevant and necessary to the Union’s per-
formance of its functions as the exclusive collective-
bargaining representative of the unit.
(c) 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) On request, bargain with the Union as the exclusive
collective-bargaining representative of the employees in
the following appropriate unit concerning terms and con-
ditions of employment and, if an understanding is
reached, embody the understanding in a signed agree-
ment:
All full-time and regular part-time drivers and monitors
employed by Allways East Transportation, Inc. at its
228 Myers Corners Road, Wappingers Falls, New
York location; excluding office clerical employees,
dispatchers, assistant dispatchers, safety trainers, me-
chanics, guards, and supervisors and professional em-
ployees as defined in the Act.
ALLWAYS EAST TRANSPORTATION, INC. 7
(b) Furnish to the Union in a timely manner the infor-
mation it requested on July 18, 2014.
(c) Within 14 days after service by the Region, post at
its Wappingers Falls, New York facility copies of the
attached notice marked “Appendix.”20 Copies of the
notice, on forms provided by the Regional Director for
Region 3, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous
places, including all places where notices to employees
are customarily posted. In addition to physical posting of
paper notices, 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
customarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material. If 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 cur-
rent employees and former employees employed by the
Respondent at any time since April 22, 2014.
(d) Within 21 days after service by the Region, file
with the Regional Director for Region 3 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. May 11, 2017
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
CHAIRMAN MISCIMARRA, dissenting.
This case primarily concerns whether Respondent
Allways East Transportation (Allways or Respondent) is
a successor employer to Durham School Services
(Durham). Reversing the judge, my colleagues find that
Allways is a “successor” employer that was required to

20 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.”
recognize and engage in bargaining with Local 445 of the
International Brotherhood of Teamsters, which previous-
ly represented Durham’s drivers and monitors. There-
fore, my colleagues find that Allways violated the Na-
tional Labor Relations Act (NLRA or Act) when it failed
to recognize and engage in bargaining with Local 445.1 I
disagree with my colleagues because I believe they dis-
regard and misapply a fundamental aspect of successor-
ship law. It is well established that a new employer con-
stitutes a legal “successor,” inheriting an obligation to
recognize and bargain with the predecessor’s union in the
absence of an election,2 only if there is substantial conti-
nuity in the business, which must focus on the perspec-
tive of employees. Fall River Dyeing at 43–44. In this
case, I believe the record establishes what the judge
properly found: the business as operated by Allways is
substantially dissimilar from the operations of the prede-
cessor (Durham). Indeed, these fundamental differences
constitute the principal reason Allways was selected to
replace Durham as the entity responsible for doing the
work at issue here. Therefore, as described more fully
below, I believe the judge correctly concluded that Re-
spondent is not a successor employer and it has no obli-
gation to recognize and bargain with the Union in the
circumstances presented here.
Facts
Durham School Services is a large national school bus
transportation company. Among Durham’s many opera-
tions, it provided school bus transportation services for

1 Because I find that Respondent had no bargaining obligation, I al-
so dissent from my colleagues’ conclusion that Respondent unlawfully
failed to respond to the Union’s July 18 information request, and I
concur in their dismissal of the remaining complaint allegations—i.e.,
that Respondent unlawfully failed to bargain over changes to initial
wage rates and unlawfully failed to bargain prior to terminating em-
ployee Sherry Siebert. As to the latter allegation, I note that I dissented
in Total Security Management, 364 NLRB No. 106, slip op. at 17–42
(2016), from the majority’s prospective imposition of a new and unwar-
ranted bargaining obligation for discretionary disciplinary actions.
2 Regardless of whether or not a workforce may have experienced
changes involving a transition in employers, the Act provides that a
union may secure employer recognition and the right to represent em-
ployees by establishing majority support in a Board-conducted election.
See Sec. 9 (providing for union representation based on majority sup-
port among employees in an appropriate bargaining unit). The Board’s
successorship cases involve an exception from this general principle
where a predecessor’s union may automatically represent a new em-
ployer’s employees, without any election, provided there is substantial
continuity in the business, as described in numerous cases that have
been decided by the Board, the Supreme Court, and other courts. See,
e.g., Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27
(1987); NLRB v. Burns International Security Services, 406 U.S. 272
(1972). Cf. Howard Johnson Co. v. Detroit Local Joint Executive
Board, 417 U.S. 249 (1974); Golden State Bottling Co. v. NLRB, 414
U.S. 168 (1973); John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543
(1964).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
general and special education students in Dutchess Coun-
ty, New York. In February 2014, the Dutchess County
Department of Health cancelled its contract with Durham
for the transportation of special education students due to
Durham’s poor performance. Dutchess County then
awarded that contract to Respondent, a small company
which specializes in providing school bus transportation
services for special education students. Prior to being
awarded the Dutchess County contract, Respondent had
provided this service only for Westchester County
schools.
To prepare for operations in Dutchess County, Re-
spondent leased a facility in Wappingers Falls, which is
approximately 54 miles from its Yonkers, New York
headquarters and approximately 8 miles from Durham’s
facility in Poughkeepsie, also in Dutchess County. Re-
spondent also purchased new buses and equipment, con-
ducted a job fair, and hired drivers and monitors. On
April 16, the Union requested recognition from and bar-
gaining with Respondent. Respondent did not respond.
On April 22, Respondent began providing transporta-
tion services for special education students in Dutchess
County. Respondent changed myriad terms and condi-
tions of employment. Respondent also increased the
number of routes and altered the stops along many of the
existing routes. Respondent’s president, Judith Koller,
and an office manager temporarily relocated to Wap-
pingers Falls to oversee the initial start of operations.
They returned to their permanent offices in Yonkers after
2 weeks. Two Yonkers employees were promoted and
permanently transferred to dispatcher positions in Wap-
pingers Falls, where they effectively serve as conduits
between management in Yonkers and employees and
clients in Dutchess County.3 In addition, from April 22
until the end of the school year in June, Respondent daily
shuttled 8 to 10 drivers and monitors from Yonkers to
Wappingers Falls, supplementing the 82 employees per-
manently assigned to work there. Respondent’s man-
agement oversees all operations and performs all sched-
uling, hiring, firing, payroll, and other personnel ser-
vices. In addition, all bus maintenance is performed at
the Yonkers facility, in contrast to Durham’s perfor-
mance of maintenance at its Poughkeepsie facility.
The judge concluded that Respondent was not a suc-
cessor obligated to recognize and bargain with the Un-
ion, and the judge also concluded that Respondent’s fa-
cility in Wappingers Falls was not an appropriate “stand-
alone” bargaining unit. Unlike my colleagues, I believe
both of these findings by the judge were correct.

3 There is no claim that the dispatchers exercise any Sec. 2(11) su-
pervisory authority.
Discussion
It is well established that the test for determining suc-
cessorship is: (1) whether a majority of the new employ-
er’s work force, in an appropriate unit, are former em-
ployees of the predecessor employer; and (2) whether
there is substantial continuity between the enterprises.
Burns, 406 U.S. at 280–281 & fn. 4, and Fall River Dye-
ing, 482 U.S. at 41–43. As my colleagues correctly ob-
serve, the record establishes one component of substan-
tial continuity: that a majority of Respondent’s employ-
ees based at its Wappingers Falls facility were formerly
employed by Durham. However, we are still left with
two questions: whether there is substantially continuity
between Durham’s operations and those conducted by
Respondent, which must be viewed from the perspective
of the employees; and whether it is appropriate to have a
bargaining unit limited to Respondent’s operations in
Wappingers Falls. Like the judge, I believe the record
establishes that both of these questions must be answered
in the negative.
1. Significant differences between Respondent’s busi-
ness enterprises and Durham’s business enterprises pre-
clude a finding of substantial continuity of operations.
When determining whether there is substantial continuity
of operations between a predecessor and purported suc-
cessor, the Board must consider “whether the business of
both employers is essentially the same; whether the em-
ployees of the new company are doing the same jobs in
the same working conditions under the same supervisors;
and whether the new entity has the same production pro-
cess, produces the same products, and basically has the
same body of customers.” Fall River Dyeing, 482 U.S.
at 43. As noted previously, the Board is required to un-
dertake this analysis from the employees’ perspective;
specifically, the inquiry is whether “those employees
who have been retained will understandably view their
job situations as essentially unaltered.” Id. (quoting
Golden State, 414 U.S. at 184). In this regard, the Su-
preme Court has stated the “emphasis on the employees’
perspective furthers the Act’s policy of industrial peace.
If the employees find themselves in essentially the same
jobs after the employer transition and if their legitimate
expectations in continued representation by their union
are thwarted, their dissatisfaction may lead to labor un-
rest.” Fall River Dyeing, 482 U.S. at 43–44 (emphasis
added).
My colleagues find that Respondent and Durham “op-
erate the same general business service,” with only
“some minor differences in the Respondent’s operations
and in the employees’ terms and conditions of employ-
ment.” It is true that the former employer and new em-
ployer both engaged in the business of transporting cer-
ALLWAYS EAST TRANSPORTATION, INC. 9
tain school students from point A to point B (i.e., driving
students “to and from Dutchess County schools by
school bus on a predetermined route”). If one defines the
business operations in these simplistic terms, as my col-
leagues apparently do, there might be sufficient business
continuity to support a finding of successorship.
However, the record fundamentally contradicts a sug-
gestion that Respondent’s operations involve this type of
“substantial continuity” with the work performed by the
predecessor, Durham. And the dissimilarities are espe-
cially prominent when one focuses on the perspective of
employees, which is required under Fall River Dyeing.
The business at issue here clearly does not involve mere-
ly transporting students from point A to point B. For one
thing, the operations undertaken by Allways involve a
special category of students. As stated above, Durham
provided school bus transportation services for general
and special education students. In contrast, after initially
awarding both types of work to Durham, the Dutchess
County cancelled the contract giving Durham the work
associated with transporting special education students.
In contrast to Durham’s general bus transport operations,
Allways specializes in providing transportation services
only for special education students.
These facts establish, as a preliminary matter, that the
operations at issue here clearly involve more than merely
moving students from point A to point B. If this were
the case, then Durham—which was first awarded con-
tracts to provide transportation for general education and
special education students—would have retained its con-
tract for transporting special education students, and the
instant controversy would never have arisen. Instead,
Dutchess County officials found that Durham did not
satisfactorily perform the work of transporting special
education students, which prompted the county to cancel
the contract and to give this work to Allways. Conse-
quently, Durham remained responsible for transporting
general education students (basically moving them from
point A to point B), and Allways—which specialized in
transporting special education students, and which previ-
ously had bid only for the “special education” transporta-
tion work—was belatedly assigned to do this work, and
this work only. If there was nothing materially different
about the work associated with transporting special edu-
cation students, there would have been no reason for
Allways to specialize in transporting special education
students, or for Dutchess County officials to reassign this
work to Allways. Thus, Allways did not simply take
over this discrete portion of the contract from Durham; it
provided a different type of service to the special educa-
tion students covered by that portion of the contract.
Moreover, when one evaluates the perspective of Re-
spondent’s employees who commenced their responsibil-
ity for transporting special education students on April
22, working out of Respondent’s new facility in Wap-
pingers Falls, nearly everything about their jobs had
changed. One cannot improve on the judge’s careful,
detailed description of the record evidence regarding the
many changes in operations, regarding the transporting
of special education students, that were obviously evi-
dent to Respondent’s employees. Thus, the judge found:
While both companies provide school bus trans-
portation services, Durham provides bus transporta-
tion for general education and special needs chil-
dren, while the Respondent provides transportation
only for special needs children. The Respondent
took over the special education contract, a portion of
the services Durham provided, and continues to pro-
vide, to Dutchess County. All of the Respondent’s
drivers must be trained and certified to transport
special needs children, which is more skilled than
driving a regular education bus. Further, special
needs children require monitors on their buses, who
utilize specialized equipment and are trained in
dealing with special needs children, their various
conditions, and the myriad issues which may arise
on the buses.
Those drivers and monitors who were hired by
the Respondent that had previously worked for
Durham continued to provide school bus transporta-
tion for special needs children in the same area, but
their working conditions had changed and they had
none of the same supervisors. The local facility was
in a different location. While Durham had two sites,
in Poughkeepsie and Red Hook, the Respondent
opened a new facility in Wappingers Falls. The
wage rates were different, the work rules and poli-
cies had changed, and the supervisors had changed.
All the Respondent’s supervisors and managers are
at Yonkers; none are assigned to Wappingers Falls,
while Durham had supervisors at the Poughkeepsie
facility. Durham had a maintenance department in
Poughkeepsie; the Respondent’s [maintenance de-
partment] is in Yonkers. After Durham lost this con-
tract, its operations continued virtually unchanged at
its Poughkeepsie and Red Hook facilities.
Although the Respondent assumed responsibility
to provide school bus transportation for special
needs children in Dutchess County, it took over only
the contract, not any portion of Durham’s opera-
tions. The drivers’ processes and procedures are
materially different from Durham’s. Most of the
routes changed, being either modified somewhat or
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
changed completely. There are more routes than un-
der Durham. Drivers pick up the monitors at home
or the monitors come to the driver’s house, rather
than joining them at the facility, as with Durham.
Most buses are parked overnight at the driver’s
home, rather than at the facility, as with Durham.
Drivers and monitors have different work hours than
at Durham; they could have split shifts and different
numbers of routes. Fueling is done at the county lot
by credit card, rather than at the facility, as with
Durham. Employees used to go to the Durham base
on a daily basis, where they would drop off their pa-
perwork; that is now done weekly, when they pick up
their paychecks. Employees would also go to the
Durham base during the day, between runs, often in
order to obtain additional hours, to see if any runs
were available that day. That is unnecessary with the
Respondent, as employees have full schedules. Em-
ployees communicate with two dispatchers at Wap-
pingers Falls, who are different from the dispatchers
at Durham.
The Respondent had no contact with Durham, ei-
ther before or after starting to service Dutchess
County in April 2014. It did not take over any of
Durham’s facilities, it did not purchase any buses or
equipment from Durham. It did not obtain any in-
formation regarding routes or employees or any oth-
er matter, nor did it obtain any records of any kind
from Durham. It did not step in and take over
Durham’s operations; it merely took over the
Dutchess County contract for special education
children, operating completely independently of
Durham. It did not simply begin transporting stu-
dents on the same routes with the same drivers and
monitors. New routes had to be configured, old ones
modified, and the total number of routes increased
from 52 to 65. Although some Durham employees
were hired, the Respondent’s hiring process was not
pro forma; the Respondent conducted a genuine ap-
plication and hiring process. It did not contact
Durham in order to obtain recommendations about
employees. Some employees were assigned similar
routes as they had with Durham, but virtually all
routes were changed in some respect.
Even the witnesses called by the General Coun-
sel, who had worked for both Durham and the Re-
spondent, testified to significant changes in their
working conditions with the Respondent, including
having different routes, different numbers of routes,
and different numbers of hours.
In sum, many changes occurred, including leas-
ing property, purchasing new buses and equipment,
developing new routes, changing old routes, hiring
new employees, and imposing new policies and pro-
cedures. Even viewed solely from the employees’
perspective as urged in Fall River, above, it was
clear that there was a new employer, that they were
working under new rules and procedures, for differ-
ent supervisors, and the operation was not merely a
continuation of Durham’s.4
In short, not only was the essential part of Respond-
ent’s business unique (involving particularized needs
associated with an exclusive focus on special education
students), virtually everything associated with Respond-
ent’s business changed from what had previously been
done by Durham, and these changes were unquestionably
substantial from the perspective of employees. The rec-
ord contradicts any suggestion that Respondent’s em-
ployees occupied “essentially the same jobs after the
employer transition” or that they would have “under-
standably view[ed] their job situations as essentially un-
altered.” Fall River Dyeing, 482 U.S. at 43 (citation
omitted).5 Accordingly, the Board cannot reasonably
find that substantial business continuity existed in the
instant case to support a conclusion that Respondent was
a “successor” obligated to recognize and bargain with the
Union in the absence of an election.
2. The Wappingers Falls facility is not an appropriate
bargaining unit because of Respondent’s highly central-
ized control over daily operations. The appropriateness
of a bargaining unit limited to Respondent’s Wappingers
Falls facility presents a closer question in this case. Alt-
hough the Board applies a rebuttable presumption that
single-facility bargaining units are appropriate, I believe
the judge applied the correct analysis and properly found
that this presumption has in fact been rebutted by Re-
spondent. Therefore, separate from the question of busi-
ness continuity, the bargaining unit’s inappropriateness
independently warrants a conclusion that Respondent did
not unlawfully fail to recognize and bargain with the
Union in the instant case.
When determining whether an employer has rebutted
the presumption favoring a single-facility bargaining
unit, the Board examines a number of factors involving
the extent to which included and excluded employees
share a community of interest: (1) central control over

4 Judge’s opinion, infra, slip op. at 16 (emphasis added).
5 The cases cited by my colleagues—namely, A. J. Meyers & Sons,
Inc., 362 NLRB No. 51 (2015), Van Lear Equipment, Inc., 336 NLRB
1059 (2001), and Montauk Bus Co., 324 NLRB 1128 (1997)—are
distinguishable from the situation presented here. None of those cases
involved the fundamental change to the essence of the business that
occurred here, nor did the employees in those cases experience such
significant changes to their terms and conditions of employment.
ALLWAYS EAST TRANSPORTATION, INC. 11
daily operations and labor relations, including the extent
of local autonomy, (2) similarity of skills, functions, and
working conditions, (3) degree of employee interchange,
(4) distance between locations, and (5) bargaining histo-
ry, if any. J&L Plate, 310 NLRB 429, 429 (1993). Con-
sidering these factors, I agree with the judge’s finding
that the Wappingers Falls facility is not an appropriate
single-facility bargaining unit. In the context of Re-
spondent’s operations, which involve the Wappingers
Falls facility and the Yonkers location, the record estab-
lishes that Wappingers Falls has “been so effectively
merged into a comprehensive unit, or is so functionally
integrated, that it has lost its separate identity.” Dean
Transportation, Inc., 350 NLRB 48, 58 (2007), enfd. 551
F.3d 1055 (D.C. Cir. 2009).
For several reasons, I believe my colleagues errone-
ously conclude that Respondent’s Wappingers Falls fa-
cility is an appropriate bargaining unit.
First, the factor of central control over daily operations
overwhelmingly favors finding a single-facility Wap-
pingers Falls unit inappropriate. All hiring, firing,
scheduling, route assignments, payroll, human relations,
accounting, and purchasing services are performed in
Yonkers. Although the majority makes much of the fact
that Respondent’s president and an office manager were
present in Wappingers Falls for the first 2 weeks of the
operation, they acknowledge that this was a temporary
measure. Those individuals returned to Yonkers, where
they are permanently headquartered. In my view, the
brief, temporary presence of the president and office
manager does not demonstrate any local autonomy in
Wappingers Falls operations. Quite the opposite, it is
instead strong evidence of the high degree of centralized
control that Yonkers management at all times maintained
over operations at both facilities. After the departure of
the president and the office manager, the two dispatchers
permanently transferred from Yonkers are nominally the
only managerial presence at the Wappingers Falls facili-
ty, but they simply act as conduits through which the
school district, parents, employees, and management in
Yonkers can pass information. For instance, they receive
requests for time off from employees and relay those
requests to management in Yonkers, which then deter-
mines whether to grant the requests. The only authority
they appear to exercise on their own is the reassignment
of drivers to cover routes due to unexpected absences.
However, the record is devoid of evidence as to how
frequently they exercise this limited authority. The ma-
jority cites no case,6 and I know of none, in which the

6 My colleagues rely on Montauk Bus Co., 324 NLRB at 1135, to
support their finding of local autonomy. Unlike that case, however,
Board has found that such limited local autonomy sup-
ports a separate, single-facility unit. In short, at no time
since the commencement of Wappingers Falls operations
has that facility functioned without daily oversight from
Yonkers-based management.
Second, as my colleagues concede, the factor of simi-
lar skills, functions, and working conditions also strongly
supports a finding that the Wappingers Falls facility has
been functionally integrated with the Yonkers facility.
The drivers and monitors at each facility provide the
same specialized service in transporting special educa-
tion students, which, as stated above, is fundamentally
different than the transportation of general education
students. This work requires all of Respondent’s drivers
to have identical training and certifications, including
specialized safety training to work with special education
students. This training takes place for all drivers at the
same time, at the same location in Yonkers, and from the
same trainer. The drivers and monitors also utilize the
same skills and equipment. Cf. School Bus Services, 312
NLRB 1, 5 (1993) (paratransit drivers’ skills and work-
ing conditions “sufficiently diverse” from school bus
drivers to rebut a conclusion that a unit of all drivers at a
single location was an appropriate unit), enfd. 46 F.3d
1143 (9th Cir. 1995). Likewise, the employees at each
facility are covered by the same policies in Respondent’s
employee handbook and are on the same wage scale.
Further, all maintenance work for buses used by employ-
ees at both facilities is performed at the yard in Yonkers.
Third, the Durham unit’s history as a multifacility bar-
gaining unit likewise supports Wappingers Falls’ integra-
tion with the Yonkers facility, or, at the very least, does
not lend support to finding it to be an appropriate single-
facility unit. The majority unpersuasively characterizes
the Durham unit as a single-facility unit. It cannot be
ignored, however, that the bargaining unit description in
the parties’ collective-bargaining agreement specifically
covered the employees located at the facilities in Pough-
keepsie and Red Hook, New York. More to the point,
and unlike my colleagues, I do not believe that a union’s
previous representation of employees at a particular loca-
tion or locations favors a single-location unit in a succes-
sorship case because that is precisely the question being
evaluated. Nor do I believe that it favors a single-
location unit where, as here, myriad business changes
may diminish the relevance of the union’s pre-transition
representation of employees at a particular location.

there is no evidence that the dispatchers here have any responsibility
for day-to-day operations or scheduling. Even assuming the dispatch-
ers exercise the authority as described by the majority frequently, it
simply cannot rise to the level of “substantial authority of local man-
agement.” Id.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
Finally, I disagree with my colleagues that the factor
of employee interchange supports Wappingers Falls as a
single-facility bargaining unit. When Respondent com-
menced operations on April 22, which the majority states
is the relevant date for examining the community of in-
terest factors, Respondent could not perform its work for
Dutchess County from Wappingers Falls without the
temporary presence of senior management from Yonkers,
the permanent transfer of Yonkers employees to fill dis-
patcher positions, and the daily shuttling of 8 to 10 driv-
ers and monitors (10 to 12 percent of the total work
force) from Yonkers to Wappingers Falls. Ultimately,
however, even if I agreed with my colleagues that the
employee interchange factor supports a single facility
presumption, I believe that this one factor is substantially
outweighed by the other three community-of interest-
factors. The record conclusively demonstrates that the
Wappingers Falls facility has been effectively merged
and functionally integrated with Respondent’s headquar-
ters in Yonkers such that it has lost its separate identity.7
Overall, I find this case is strikingly similar to Dattco.
There, the Board found that the employer was not a legal
successor because the bus terminal at issue was not an
appropriate single-facility bargaining unit. The Board
noted the “highly centralized control over daily opera-
tions, and uniform working conditions, functions, and
skills.” 338 NLRB at 51. The Board also observed that
“[h]iring, written discipline and suspension, and termina-
tion decisions are made at headquarters. Time off is
granted by managers at headquarters. Payroll and per-
sonnel functions are carried out at headquarters.” Id. As
a result of this central control, the local terminal manager
had little autonomy. Although the level of employee
interchange involved is arguably less here than in Dattco,
overall the strong factual similarities between that case
and this support finding that Wappingers Falls is not an
appropriate single-facility bargaining unit. 8

7 I believe the factor of geographic distance is neutral in the instant
case. The Board has found employers to be a successor employer with
facilities a closer distance than the 54 miles in this case, D&L Trans-
portation, 324 NLRB 160 (1997) (18 miles between facilities), but has
also found that employers have successfully rebutted the single-facility
presumption despite a further distance than at issue in this case, Dattco,
Inc., 338 NLRB 49, 50 (2002) (55 miles between facilities).
8 As similar as this case is to Dattco, the facts regarding the appro-
priateness of the bargaining unit are quite unlike those of A. J. Myers,
which is relied on by my colleagues. Unlike this case, the Board in A.
J. Myers found that the single-facility presumption was not rebutted
based on significant local autonomy vested in the terminal manager and
different working conditions for each location, among other things.
362 NLRB No. 51, slip op. at 9–10.
Conclusion
For the above reasons, consistent with the judge’s de-
cision in this case, I believe the record establishes that
Respondent is not a legal successor to Durham. There-
fore, I believe the Board cannot reasonably conclude that
Respondent had a duty to recognize and bargain with the
Union. Accordingly, and because the remaining com-
plaint allegations are dependent on an obligation to bar-
gain, I would affirm the judge’s dismissal of the com-
plaint in its entirety.
Dated, Washington, D.C. May 11, 2017
______________________________________
Philip A. Miscimarra, 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 vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT fail and refuse to recognize and bargain
with International Brotherhood of Teamsters, Local 445
as the exclusive collective-bargaining representative of
our employees in the bargaining unit.
WE WILL NOT refuse to bargain collectively with the
Union by failing and refusing to furnish it with requested
information that is relevant and necessary to the Union's
performance of its functions as the collective-bargaining
representative of our unit employees.
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, on request, bargain with the Union as the
exclusive collective-bargaining representative of our
employees in the following appropriate unit concerning
terms and conditions of employment and, if an under-
ALLWAYS EAST TRANSPORTATION, INC. 13
standing is reached, embody the understanding in a
signed agreement:
All full-time and regular part-time drivers and monitors
employed by Allways East Transportation, Inc. at its
228 Myers Corners Road, Wappingers Falls, New
York location; excluding office clerical employees,
dispatchers, assistant dispatchers, safety trainers, me-
chanics, guards, and supervisors and professional em-
ployees as defined in the Act.
WE WILL furnish to the Union in a timely manner the
information requested by the Union on July 18, 2014.
ALLWAYS EAST TRANSPORTATION, INC.
The Board's decision can be found at
www.nlrb.gov/case/03–CA–128669 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Re-
lations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.
John Grunert, Greg Lehmann, and Charles Guzak, Esqs., for
the General Counsel.
Richard I. Milman, Ira D. Wincott, and Jonathan Sturm, Esqs.
Marshall M. Miller Associates, Inc.), for the Respondent.
Daniel E. Clifton, Esq. (Lewis, Clifton & Nicolaidis, P.C.), for
the Charging Party.
DECISION
STATEMENT OF THE CASE
SUSAN A. FLYNN, Administrative Law Judge. This case was
tried in Poughkeepsie, New York, on December 15–16, 2014,
March 30–April 1, 2015, and April 22–23, 2015. The Charging
Party Union filed the charges on May 15 and August 1, 2014,
respectively, and the General Counsel issued the complaint on
September 30, 2014.
The complaint alleges that the Respondent is a successor
employer that has failed and refused to recognize and bargain
with the Union, and that it unilaterally changed the wage rates
of unit employees. It further alleges that the Respondent termi-
nated an employee without affording the Union prior notice and
an opportunity to bargain, and failed and refused to respond to
the Union’s request for information. The Respondent’s answer
denies all material allegations.
After the trial, the General Counsel and the Respondent filed
briefs, which I have read and considered. Based on the entire
record in this case,1 including my observation of the demeanor
of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, Allways East Transportation, Inc., is a cor-
poration that provides schoolbus transportation for special edu-
cation and special needs children in Westchester and Dutchess
Counties, New York. It is headquartered in Yonkers, New
York, with a secondary place of business in Wappingers Falls,
New York, at the relevant time period. In the 12 months pre-
ceding September 30, 2014, the Respondent derived gross rev-
enues in excess of $250,000 at its Wappingers Falls facility,
and purchased and received at that facility products, goods, and
materials valued in excess of $5000 directly from points outside
the State of New York. Accordingly, I find, and the Respond-
ent admits, that it is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the National Labor
Relations Act (the Act).
I further find that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Allways East Transportation, Inc. (the Respondent), is a rela-
tively small school bus transportation company, headquartered
in Yonkers. It was founded by Judith Koller and her now-
deceased husband. Judith is now president of the Company,
and her daughter, Marlaina Koller, is vice president. The Com-
pany specializes in transporting special education and special
needs students. At the relevant time, the Company employed
approximately 233 drivers and monitors in Yonkers, where it
provided services for Westchester County. There are approxi-
mately 17 other employees at Yonkers, including an office
manager, fleet maintenance manager, operations manager, me-
chanics, payroll staff, clerical staff, and dispatcher/drivers. The
Company has always been nonunion.
Prior to April 2014, Durham School Services, a large nation-
al company, had provided school bus service for special educa-
tion and special needs children in Dutchess County, as well as
for general education children. In 2012, the Respondent had
submitted a bid to provide school bus service for special educa-
tion and special needs children in response to a Request for
Proposal by the Dutchess County Department of Health. The
Respondent lost that bid; however, Dutchess County contacted
the Respondent in early 2014 and requested that it take over the
contract almost immediately, during the spring term, due to
poor performance by Durham. Although the Respondent had
little time to prepare, it agreed to begin service in April 2014.
Dutchess County terminated the contract with Durham by letter
dated February 28, 2014.
With Durham, there had been 52 routes for those special ed-
ucation and special needs children. The Respondent had to

1 The Respondent filed an unopposed motion to correct the tran-
script. The motion is granted.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
purchase the buses and equipment to service those routes, as
well as hire drivers and monitors. Subsequently, when the
Respondent evaluated the routes, it was determined that 65
routes were necessary. Additionally, the Respondent was re-
quired by the contract to lease property in Dutchess County as a
satellite yard.
B. Preparations to Service Dutchess County
Before taking over this Dutchess County contract, the Re-
spondent had serviced only Westchester County schools. It had
approximately 5 weeks to prepare to begin providing service
for Dutchess County. It purchased new buses and new equip-
ment including child safety seats. It leased property in
Dutchess County as a satellite yard, a requirement of the con-
tract. It modified its insurance and workers’ compensation poli-
cies to cover the new facility. It hired new drivers and moni-
tors2 for the Dutchess County routes.
The Respondent participated in a job fair at a Poughkeepsie
hotel on 2 weekends in March 2014 in order to recruit needed
drivers and monitors. Judith and Marlaina Koller were present,
along with management from Yonkers. Marlaina made a
presentation about the Company and answered any questions.
Interested applicants submitted applications. Some applicants
had worked for Durham; others never had, but may have
worked for another bus company. Dutchess County had rec-
ommended that the Respondent hire drivers and monitors who
worked for Durham, who were familiar with the children, their
parents, and teachers, and the routes, since the children were
special needs students. Those individuals were instructed to
note that experience on their applications.
Subsequently, Judy and Marlaina reviewed the applications.
Physical examinations were then scheduled for the candidates
selected as drivers, conducted on April 7 by its Yonkers’ physi-
cian at the new Wappingers Falls facility. Additional paper-
work was also completed by the selectees at that time. Success-
ful candidates were then interviewed by Marlaina. Upon hire,
employees were notified of their routes and provided the com-
pany policy handbook. Park-out requests3 were also approved.
On April 22, 2014, the Respondent began transporting
Dutchess County special education and special needs students.
As of the week ending May 1, 2014, there were 82 new drivers
and monitors assigned to the Wappingers Falls facility, as well
as two driver/dispatchers who transferred from Yonkers when
promoted. Of those 82 new hires, 62 had worked for Durham
when hired by the Respondent and quit when offered employ-
ment with the Respondent.
Despite hiring those new drivers and monitors, the Respond-
ent had an insufficient number of drivers and monitors for the
Dutchess County routes, so the Respondent shuttled 8 to 10
drivers and monitors between Yonkers and Wappingers Falls,
on a daily basis. Additionally, some Yonkers drivers and moni-

2 Monitors are aides who work as a team with the busdriver. They
assist the children in boarding and disembarking, ensure the students’
safety on the bus, and handle health and behavioral situations that may
arise during transport. To that end, they develop relationships with the
children and their parents.
3 When a driver keeps the bus at his/her residence overnight, rather
than parking it at the Company’s facility, it is called a park-out.
tors preferred to stay at a local hotel while temporarily working
on the Dutchess County routes.
Some, but not all, drivers and monitors who had worked to-
gether as a team at Durham were assigned to work together by
the Respondent. Some, but not all, drivers and monitors who
had worked at Durham were assigned by the Respondent to the
same or similar routes as they had at Durham. Some drivers
and monitors who had worked at Durham had a different num-
ber of daily routes assigned by the Respondent.
No supervisors are permanently assigned to Wappingers
Falls. The two driver/ dispatchers, Aldo Leon and Carlos Rive-
ra, perform dispatcher duties and drive buses when needed.
They relay information between bus drivers and parents or
teachers, and to management in Yonkers. In addition, when an
employee calls out on a given day, the dispatchers find an
available driver or monitor to cover for them, or drive the route
themselves. The various managers from Yonkers are responsi-
ble for operations at Wappingers Falls. Initially, Judith, Mar-
laina, and Operations Manager Elida Wilson came to Wapping-
ers Falls fairly frequently to oversee the new facility. Fleet
Manager Frank Ortiz and Office Manager ToniAnn Francisco
came to Wappingers Falls as needed. Eventually, such close
supervision was no longer necessary and management now
oversees the facility primarily from their offices in Yonkers.
C. Union Contact with the Respondent
Durham employed approximately 185 full-time and part-
time drivers and monitors in Dutchess County. They are union-
ized, members of International Brotherhood of Teamsters, Lo-
cal 445 (the Union). Durham and the Union entered into col-
lective-bargaining agreements, the most recent of which was
effective from September 2, 2012, to August 31, 2018.
Since Durham continued to provide general education school
bus transportation services for Dutchess County after the Re-
spondent took over the special education and special needs
contract, the Union continued to represent the drivers and
monitors employed by Durham. Further, it believed it contin-
ued to represent unit members who were now employed by the
Respondent. To that end, the Union (Business Agent Lori
Polesel and Secretary/Treasurer Adrian Huff) called Marlaina
and had a brief conversation, to introduce themselves and re-
quest a meeting. The Union then emailed Marlaina on March
10, 2014, proposing dates for such a meeting. Then, on April
16, 2014, it sent her a letter requesting that the Respondent
recognize the Union as the collective-bargaining representative
of the drivers and monitors, and bargain collectively with the
Union. The Respondent did not respond. On May 14, Polesel
and Huff went to Yonkers to try to meet with Marlaina but
were told she was not there.
D. The Respondent’s Operations
All of the Respondent’s managers are assigned to, and work
from, the Yonkers facility. They go to Wappingers Falls as
needed, such as for weekly delivery of paychecks.
All hiring, firing, and discipline decisions are made by Judith
and/or Marlaina, in Yonkers. All payroll, human resources, and
labor relations services are performed in Yonkers. All person-
nel files are maintained in Yonkers. Wappingers Falls’ monthly
ALLWAYS EAST TRANSPORTATION, INC. 15
attendance sheets, payroll cards, and DOT reports (daily pretrip
cards completed by drivers) are sent to Yonkers for processing
and retention. All employees are subject to the same employee
policies and handbook. All drivers and monitors are guaran-
teed a minimum workweek of 22.5 hours. They are paid ac-
cording to the same pay scales and receive the same benefits.
All accounting, billing, and ordering of supplies and equipment
is done in Yonkers. Bus routes are created and modified in
Yonkers, and route assignments are made in Yonkers.
There is one maintenance facility, in Yonkers, for all
maintenance, servicing, and repairs. An employee at Wapping-
ers Falls does minor servicing such as refilling vehicle fluids
and washing windows. Drivers or driver/dispatchers bring the
buses down to Yonkers unless the vehicle is disabled. In such
instances, repairs may be made at a local service station.
There is one State and Federal DOT inspection number for
both yards, and one 19a school bus transportation certificate
registration account for both yards. The Respondent has one
insurance policy for all buses, at both sites, and all are regis-
tered and insured in Yonkers. There is one liability insurance
policy and one OWCP policy.
The same 19a trainer is used to certify drivers at both yards,
and all 19a training is conducted at Yonkers. The Respondent
shuttles Wappingers Falls drivers to Yonkers for that training.
All safety classes are conducted as one group at Yonkers. The
same doctor is employed for all drivers’ annual physicals, as
well as for prehire physicals. Employees from both facilities are
pooled as one group for random mandatory D&A testing. All
social events are for employees at both locations, and are held
in the Yonkers area.
E. Employees’ Terms and Conditions of Employment
The terms and conditions for employees who used to work at
Durham changed significantly. They are subject to new per-
sonnel policies and different benefits. Wages were increased for
most. There is no seniority with the Respondent, and they did
not receive credit for their service at Durham. They have new
buses and new equipment. Most have modified or altogether
different routes than at Durham.
Almost all of the Respondent’s drivers have park-outs; at
Durham, only about one-third did. The drivers pick up their
monitors at the monitor’s home, or the monitors drive to driv-
er’s house. At Durham, most drivers picked up the monitors at
the base. The fueling procedures are different. At Durham,
buses were refueled at the base, while the Respondent provides
drivers with keys encoded with their social security number to
fuel at county fueling stations. At Durham, drivers returned to
the base every day, and often between routes; at Respondent,
there is no reason to come to the facility except once a week for
about 10 minutes, to pick up their paychecks and drop off pa-
perwork.
The employees utilize different buses and equipment, com-
municate with different dispatchers, report to different supervi-
sors, and have a different work location than with Durham.
Some employees transport some of the same students, on simi-
lar routes, but, although this was a midsemester change, the
routes were modified and some new routes added.
As there are no local supervisors, requests for leave are
communicated to the dispatchers. They note the requests on a
board, for the supervisors.
F. Termination of Sherry Siebert and Request for Information
Sherry Siebert was a driver for the Respondent, who had
previously worked for Durham. On July 18, 2014, she was
fired. She did not seek union representation and did not notify
the Union of her termination. When the Union learned of her
firing, Polesel contacted Marlaina via email. (GC Exh. 9(e).)
She requested that Marlaina provide her with information about
all terminated employees and requested to meet and discuss
those actions. Marlaina did not respond.
Neither Marlaina nor Judith nor anyone else on behalf of the
Respondent has ever contacted the Union regarding these mat-
ters, nor have they responded to the Union’s requests to bargain
or provide information.
III. LEGAL STANDARDS AND ANALYSIS
E. Respondent’s Motion to Dismiss the Complaint
The Regional Director for Region 3 filed a petition for pre-
liminary injunction pursuant to Section 10(j) of the Act in the
Federal District Court for the Southern District of New York,
that was denied by Judge Nelson Roman on December 1, 2014.
The General Counsel has appealed that determination to the
Second Circuit Court of Appeals, where it is pending.
The Respondent filed a Motion to Dismiss the instant com-
plaint on the basis that Judge Roman’s decision precludes
Board jurisdiction over the matter, since he ruled that the Re-
spondent is not a successor employer and had no obligation to
recognize or bargain with the Union. The Respondent contends
that Judge Roman’s findings are conclusive as a matter of res
judicata and estoppel.
Judge Roman’s rulings are not binding on me, as the issues
before me are not the same issues presented to Judge Roman,
and different standards apply. The cases cited by the Respond-
ent are not on point; no case was cited that addresses a similar
situation, and I have found none.
The motion to dismiss the complaint is denied.
B. Is the Respondent a Successor Employer?
It is well settled that a successor employer is required to rec-
ognize and bargain with a union representing the predecessor’s
employees when there is a “substantial continuity” of opera-
tions between the two, and if a majority of the new employer’s
work force, in an appropriate unit, consists of the predecessor’s
employees when the new employer has reached a “substantial
and representative complement.” Fall River Dyeing Corp. v.
NLRB, 482 U.S. 27 (1987); In re Dattco, Inc., 338 NLRB 49
(2002).
Is There Substantial Continuity of Operations?
In order for a new employer to be a successor, there must be
substantial continuity of operations, as evidenced by all three of
the following factors:
1. The business of both employers is essentially the
same;
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
2. The employees of the new company are doing the
same jobs in the same working conditions under the same
supervisors as the predecessor; and
3. The new entity has the same production process,
procedures, and products, and basically the same body of
customers.
Fall River Dyeing Corp., supra at 43.
I find that none of these factors has been met.
While both companies provide school bus transportation ser-
vices, Durham provides bus transportation for general educa-
tion and special needs children, while the Respondent provides
transportation only for special needs children. The Respondent
took over the special education contract, a portion of the ser-
vices Durham provided, and continues to provide, to Dutchess
County. All of the Respondent’s drivers must be trained and
certified to transport special needs children, which is more
skilled than driving a regular education bus. Further, special
needs children require monitors on their buses, who utilize
specialized equipment and are trained in dealing with special
needs children, their various conditions, and the myriad issues
which may arise on the buses.
Those drivers and monitors who were hired by the Respond-
ent that had previously worked for Durham continued to pro-
vide school bus transportation for special needs children in the
same area, but their working conditions had changed and they
had none of the same supervisors. The local facility was in a
different location. While Durham had two sites, in Poughkeep-
sie and Red Hook, the Respondent opened a new facility in
Wappingers Falls. The wage rates were different, the work
rules and policies had changed, and the supervisors had
changed. All the Respondent’s supervisors and managers are at
Yonkers; none are assigned to Wappingers Falls, while Durham
had supervisors at the Poughkeepsie facility. Durham had a
maintenance department in Poughkeepsie; the Respondent’s is
in Yonkers. After Durham lost this contract, its operations con-
tinued virtually unchanged at its Poughkeepsie and Red Hook
facilities.
Although the Respondent assumed responsibility to provide
school bus transportation for special needs children in Dutchess
County, it took over only the contract, not any portion of
Durham’s operations. The drivers’ processes and procedures
are materially different from Durham’s. Most of the routes
changed, being either modified somewhat or changed com-
pletely. There are more routes than under Durham. Drivers
pick up the monitors at home or the monitors come to the driv-
er’s house, rather than joining them at the facility, as with
Durham. Most buses are parked overnight at the driver’s home,
rather than at the facility, as with Durham. Drivers and moni-
tors have different work hours than at Durham; they could have
split shifts and different numbers of routes. Fueling is done at
the county lot by credit card, rather than at the facility, as with
Durham. Employees used to go to the Durham base on a daily
basis, where they would drop off their paperwork; that is now
done weekly, when they pick up their paychecks. Employees
would also go to the Durham base during the day, between
runs, often in order to obtain additional hours, to see if any runs
were available that day. That is unnecessary with the Respond-
ent, as employees have full schedules. Employees communi-
cate with two dispatchers at Wappingers Falls, who are differ-
ent from the dispatchers at Durham.
The Respondent had no contact with Durham, either before
or after starting to service Dutchess County in April 2014. It
did not take over any of Durham’s facilities, it did not purchase
any buses or equipment from Durham. It did not obtain any
information regarding routes or employees or any other matter,
nor did it obtain any records of any kind from Durham. It did
not step in and take over Durham’s operations; it merely took
over the Dutchess County contract for special education chil-
dren, operating completely independently of Durham. It did not
simply begin transporting students on the same routes with the
same drivers and monitors. New routes had to be configured,
old ones modified, and the total number of routes increased
from 52 to 65. Although some Durham employees were hired,
the Respondent’s hiring process was not pro forma; the Re-
spondent conducted a genuine application and hiring process.
It did not contact Durham in order to obtain recommendations
about employees. Some employees were assigned similar
routes as they had with Durham, but virtually all routes were
changed in some respect.
Even the witnesses called by the General Counsel, who had
worked for both Durham and the Respondent, testified to sig-
nificant changes in their working conditions with the Respond-
ent, including having different routes, different numbers of
routes, and different numbers of hours.
In sum, many changes occurred, including leasing property,
purchasing new buses and equipment, developing new routes,
changing old routes, hiring new employees, and imposing new
policies and procedures. Even viewed solely from the employ-
ees’ perspective as urged in Fall River, above, it was clear that
there was a new employer, that they were working under new
rules and procedures, for different supervisors, and the opera-
tion was not merely a continuation of Durham’s.
I find that there is no substantial continuity of operations be-
tween Durham School Services and the Respondent.
Is the Respondent’s Wappingers Falls Facility an Appropriate
Stand-Alone Bargaining Unit?
Although a single-facility unit is presumptively appropriate
for collective bargaining, that presumption is rebuttable. The
presumption is lost when the single facility is so effectively
merged into a more comprehensive unit, or is so functionally
integrated, that it does not have a separate identity. See Dattco,
above. The burden is on the party opposing the appropriateness
of the single-facility unit to present sufficient evidence to over-
come the presumption. J&L Plate, Inc., 310 NLRB 429 (1993).
A purchaser may be a successor even where it takes over on-
ly a portion of the bargaining unit, where the new unit can exist
on its own as an appropriate unit. Stewart Granite Enterprises,
255 NLRB 569 (1981).
Further, there is nothing in the statute that requires that the
proposed unit be the only appropriate unit, or the most appro-
priate unit, only that it be appropriate. Morand Bros. Beverage
Co., 91 NLRB 409 (1950), enfd. on other grounds 190 F.2d 576
(7th Cir. 1951); Overnite Transportation Co., 322 NLRB 723
(1996).
ALLWAYS EAST TRANSPORTATION, INC. 17
In determining whether the presumption of appropriateness
is rebutted, the Board considers such factors as community of
interest; central control over daily operations and labor rela-
tions including the extent of local autonomy; the degree of
employee interchange; similarity of skills, functions, and work-
ing conditions; distance between the locations; and bargaining
history, if any. See J&L Plate, above; D&L Transportation,
Inc., 324 NLRB 160 (1997); Esco Corp., 298 NLRB 837
(1990).
At the relevant time period, the Respondent had two facili-
ties: Yonkers and Wappingers Falls. The company is headquar-
tered in Yonkers, which had previously been its only facility;
Wappingers Falls is merely a satellite site. All managers and
supervisors are located in Yonkers. They consist of President
Judith Koller, Vice President Marlaina Koller, Office Manager
ToniAnn Francisco, Fleet Manager Frank Ortiz, and Operations
Manager Elida Wilson. They travel to Wappingers Falls as
necessary to oversee operations there. That is generally a 45-
minute drive. When the Wappingers Falls facility first opened,
some managers traveled there frequently. The two driv-
er/dispatchers at Wappingers Falls, Aldo Leon and Carlos Rive-
ra, had been drivers at Yonkers before accepting the Wapping-
ers Falls positions. They are not supervisors and do not make
managerial decisions or exercise substantial judgment. They do
not hire, fire, discipline, grant raises, or make any other deci-
sions, including granting or denying time off. Those decisions
are made only by Marlaina or Judith Koller, the owners, in
Yonkers. They merely handle dispatching duties, and drive
when needed. While Leon and Rivera communicate requests to
Yonkers, all decisions regarding leave and time off are made at
Yonkers. Initial assignments to bus routes are made by Yon-
kers. If an individual calls out sick, for example, either Leon or
Rivera will determine what other drivers or monitors are avail-
able to cover for them, and ask that person to do so or will do it
themselves. Scheduling an available driver or monitor to cover
for an unexpected absence on a given day is not a managerial
decision. One of the Yonkers’ supervisors comes to Wapping-
ers Falls on a weekly basis with paychecks. That individual
may distribute the checks, or may leave them with Leon or
Rivera to distribute. Distributing paychecks to employees is
likewise not a managerial function.
All labor relations and personnel functions are performed at
Yonkers. All payroll is done at Yonkers. All hiring, firing, and
disciplinary decisions are made at Yonkers by Marlaina and/or
Judith. Physical exams for new hires are performed by the doc-
tor hired by Yonkers. All employee training is conducted at
Yonkers. All bus maintenance is performed at Yonkers, if the
bus can be driven there. Otherwise, it will be performed by a
local service station. The only exceptions are minor matters,
washing windows and filling fluids such as oil, as there is no
maintenance department at Wappingers Falls.
Wappingers Falls is not a functioning stand-alone facility
operating independently of Yonkers. All operations are run by
Yonkers, and all decisions are made by Yonkers. The two
driver/dispatchers at Wappingers Falls are not managers or
supervisors, and are not responsible for making significant
decisions. Wappingers Falls could not function without the
daily oversight of Yonkers, and it does not have a separate
identity.
There are several cases somewhat similar to the instant situa-
tion where the Board has found a new employer not to be a
successor. In fact, the instant situation presents a stronger case
for integration than these cases.
The Respondent’s facility is similar to Dattco, above. Like
Dattco, all wages and benefits companywide are set by the
main office. All accounting, payroll, personnel, and records
functions are carried out at the main office. Timesheets and
paychecks are processed and generated at the main office. All
employees in both locations are subject to the same rules and
policies, and only Yonkers’ management may discipline, hire,
or fire employees at either location. Decisions on time off are
made at Yonkers. All drivers operate school buses, transporting
special needs children, with monitors who assist and supervise
the children. All drivers must possess the same license and
receive (19a) certification. Mandatory annual training is con-
ducted at Yonkers. There is no maintenance facility at Wap-
pingers Falls; all periodic routine maintenance and all emer-
gency repairs (if possible) are done in Yonkers. Bus routes are
planned at the main office, assignments to routes are made by
the main office (other than emergency call-outs). There are no
managers or supervisors at Wappingers Falls; they travel from
Yonkers as needed. There are two driver/dispatchers, who do
not exercise substantial judgment. They decide what available
driver or monitor will cover for another in case of an unsched-
uled absence, but otherwise they merely communicate infor-
mation to drivers, or between drivers and parents or teachers.
They relay requests or communicate emergency situations to
Yonkers, from whom they receive instructions. There is no
local autonomy in operations.
P. S. Elliott Services, 300 NLRB 1161 (1990), is a case
where the operations were likewise integrated. The owner and
all supervisors were located in the main office. There was a
lead person at each jobsite, but that individual was not a super-
visor. All personnel matters, hiring decisions, wage rates, and
benefits were established and handled at the main office. All
labor relations and employment policies were centralized; the
same rules, policies, and procedures applied to all employees.
Budget Rent A Car Systems, 337 NLRB 884 (2002), is in-
structive as to the significance of the role of dispatchers Leon
and Rivera. Although there were branch managers at the two
stores at issue, their authority was limited to scheduling of em-
ployees for regular work hours. They had little or no authority,
little or no input into hiring, termination, serious discipline,
wages, benefits, transfers, or scheduling of overtime; control of
labor relations was thus centralized. The Board found there
was substantial functional integration, with some employee
contact among all stores and identical job functions and terms
and conditions at each store. The job functions, skills, starting
wages, benefits, incentives, uniforms, and all other terms and
conditions were identical in all stores. Training was central-
ized, and truck mechanics traveled to the stores to perform
vehicle servicing.
Novato Disposal Services, 328 NLRB 820 (1999), has some
commonalities with the instant case. All employees at the com-
pany’s various facilities were under the supervision of the same
individuals, and there was a high degree of centralized control
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
over labor relations. There was also a significant degree of
contact and interchange between the facilities, including both
permanent and temporary interchange. Further, all employees
had common pay and benefits, seniority, training, and employ-
ees in similar job classifications performed similar work.
Prince Telecom, 347 NLRB 789 (2006), likewise had a high
degree of administrative centralization of its labor relations
policies. All human resources personnel were located at head-
quarters, and uniform personnel policies applied to all loca-
tions. Headquarters was responsible for establishing the budget,
pay scales and benefits that applied to all employees. Training
was centralized, and operations management was centralized.
The area manager visited all locations, interviewed new hires,
set their pay, and made all hiring, firing, and disciplinary deci-
sions. All employees within the same classification performed
the same duties and had the same skills. The company also
temporarily transferred a significant number of employees (26
of 148). Unlike Prince, in the Respondent’s situation, no one
else has input into hiring, firing, or disciplinary decisions.
In Marine Spill Response Corp., 348 NLRB 1282 (2006), the
Board found centralized control over labor relations and per-
sonnel matters, no local autonomy, no day-to-day local supervi-
sion but evidence of common day-to-day supervision at two
plants, and of regular interaction among employees and em-
ployee transfers among facilities.
There are also several cases where the Board found succes-
sorship, and where the situations were dissimilar to the instant
case.
In Esco Corp., 298 NLRB 837, the Board determined that
there was local autonomy, as it had a lead man, overseeing
operations, though he was not a statutory supervisor. That indi-
vidual had authority that Leon and Rivera do not.
The instant situation is also unlike Dean Transportation,
Inc., 350 NLRB 48 (2007), where the employees had different
job skills, different working conditions, virtually no interchange
of employees, and some local autonomy such as mechanics,
route planners, and supervisors. Wappingers Falls’ and Yon-
kers’ drivers and monitors have the same skills and the same
working conditions. There are no mechanics, route planners, or
supervisors at Wappingers Falls.
In Van Lear Equipment, Inc., 336 NLRB 1059 (2001), the
Board found successorship even where the new employer as-
sumed only a discrete portion of the predecessor’s operations
and did not take over the entire bargaining unit. The 19 bus
drivers hired by the respondent had been employed by the pre-
decessor, doing the same jobs under generally similar working
conditions, although with a different supervisor. They utilized
the same production processes and serviced the same custom-
ers, and parked buses in the same lot. That is not the situation
here, where most of the terms and conditions of employment
changed. Additionally, the Board found that there was no inter-
change of employees between locations, and that the local su-
pervisor had discretion and independence on certain matters
(interviewing applicants, recommendations for hire, giving oral
and written warnings, suspending employees for drug and alco-
hol, or safety infractions. In the instant case, there was signifi-
cant interchange of employees initially, and there is no local
individual with any similar labor relations authority. All such
decisions are made at Yonkers.
Stewart Granite Enterprises, 255 NLRB 569 (1981), is of in-
terest because the new employer retained all the predecessor’s
production employees when it acquired the plant. It continued
to operate the plant, producing the same products with essen-
tially the same customers. It desired to keep the predecessor’s
production employees in order to perform the same production
tasks without the necessity of training a new work force. In
addition, the new employer sought former employees of the
predecessor when additional staff was needed, for the same
reason. That situation is different from the instant case, in that
the changes there were superficial, and all employees were
retained. The employees continued to work at the same loca-
tion doing the same tasks in the same manner as they previous-
ly had. The Respondent herein, did not take over the location
or any of the equipment used by Durham. It did not retain any
of Durham’s employees; it hired individuals who worked for
Durham and then quit when they accepted positions with the
Respondent. The Respondent also had significantly different
procedures than Durham.
In Bronx Health Plan, 326 NLRB 810 (1998), the Board
found continuity of operations although the group hired by that
employer was only a small fraction of all the bargaining unit
employees covered by the collective-bargaining agreement. The
new employer continued the same operation, in the same loca-
tion, performing the same services in the same manner, and
hired the same employees and supervisors to perform the same
duties with no hiatus. Again, none of that applies to the instant
situation.
For these reasons, I find that the following factors have been
met.
I find that the Wappingers Falls facility has a community of
interest with Yonkers, in that both operate under the same man-
agers and supervisors, with the same company policies, bene-
fits, and wage structure.
I find that Yonkers exercises central control over the daily
operations and labor relations at the Wappingers Falls facility,
and that there is no local autonomy at Wappingers Falls what-
soever.
I find that there is some employee interchange between
Wappingers Falls and Yonkers, though it is limited. At the
beginning of the Dutchess County contract in 2014, there was
significant interchange as numerous Yonkers drivers and moni-
tors temporarily worked the new Dutchess County routes, either
shuttling daily between the two facilities or staying at a Pough-
keepsie area hotel. There is no evidence that any Wappingers
Falls drivers or monitors have ever temporarily worked out of
Yonkers.
I find that the drivers and monitors at Wappingers Falls and
Yonkers have identical skills and functions, and similar work-
ing conditions. All drivers have the same training and certifica-
tions, and all monitors receive the same training, since the
Company provides bus services only for special education and
special needs children. All drivers receive the same 19a train-
ing, in the same location, from the same trainer. All drive simi-
lar buses. The same work rules and company policies apply to
all employees at both locations. The same wage scale and ben-
efits apply to all employees. All employees work for the same
ALLWAYS EAST TRANSPORTATION, INC. 19
supervisors and managers. All celebrations such as holiday
parties are held for both facilities in the Yonkers area. Working
conditions are similar but not identical, since Wappingers Falls
is a satellite facility and has no supervisors or managers perma-
nently stationed there, and there is no maintenance department
there. However, all employees at both locations report to the
same supervisors and managers, who are in Yonkers. There are
two dispatchers in Wappingers Falls, so the employees deal
with different dispatchers than the Yonkers’ employees.
I find that the Wappingers Falls facility is 54 miles from
headquarters in Yonkers, usually a 45-minute drive.
There is no bargaining history at Allways East, as the Com-
pany has always been nonunion.
I find, therefore, that Wappingers Falls is not an appropriate
stand-alone bargaining unit.
Conclusions
Since I find that there is no substantial continuity of opera-
tions between Durham School Services and the Respondent,
and that the Wappingers Falls facility is not an appropriate
stand-alone bargaining unit, I conclude that the Respondent is
not a successor to Durham School Services.
Since I find that the Respondent is not a successor to
Durham School Services, it follows that it had no obligation to
recognize and bargain with the Union, no obligation to notify
the Union of its decision to terminate Sherry Siebert’s employ-
ment and bargain over that decision, no obligation to respond to
union information requests, and it did not unlawfully change
the wage rates of employees.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended4
ORDER
The complaint is dismissed.
Dated, Washington, D.C. November 12, 2015

4 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.