Duke University

National Labor Relations Board - Board Decisions

Jan 13, 1995

315 N.L.R.B. 1291 (N.L.R.B. 1995)

1291
315 NLRB No. 170
DUKE UNIVERSITY
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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.
Having adopted the judge’s credibility findings with respect to the
testimony of full-time drivers Louise Davis and Melton Thompson
and International Vice President of Amalgamated Transit Union
Tommy Mullins, we agree that the Union did not have actual notice
of the Respondent’s unfair labor practices prior to 1993. We further
find that there is no basis for concluding that the Union should have
known of the conduct before July 1993. As the judge found, the Re-
spondent was refusing to recognize the Union at the relevant times,
and thus the Union was not able to perform its function as collec-
tive-bargaining representative. Clark Equipment Co., 278 NLRB 498
(1986).
The Respondent also relies on Southeastern Michigan Gas, 198
NLRB 1221 fn. 2 (1972). In that case, the Board left open the issue
of whether the 10(b) period would begin to run only on notice to
the union when the changes are not open and obvious. The Respond-
ent apparently infers from this that the 10(b) period would begin to
run prior to notice to the union, i.e., on notice to employees, where
the changes are open and obvious to the employees. Whatever the
merit of this interpretation, it has no relevance here. The changes
here were not open and obvious to employees until within the 10(b)
period. The nature of the Respondent’s policy changes at issue here
were subtle and evolving, the full impact of which could not readily
be appreciated by the employees outside the 10(b) period.
2 The Respondent has requested oral argument. The request is de-
nied as the record, exceptions, and briefs adequately present the
issues and the positions of the parties.
3 See Land O’Lakes, 299 NLRB 982 (1990), where the respondent
unilaterally removed the classification of maintenance purchasing
mechanic/maintenance storeroom attendant from the unit and
changed it to a salaried position without bargaining with the Union
and assigned bargaining unit work to a supervisor. The new super-
visor continued to do unit work and the removal of work from the
unit resulted in an employee being displaced. The Board found that
the change had an impact on the bargaining unit and was a manda-
tory subject of bargaining and ordered the respondent to rescind the
transfer which was the result of the unlawful change. See also Good-
man Investment Co., 292 NLRB 340 (1989), where the Board or-
dered certain afterhours cleaning work returned to the bargaining
unit where the judge had found that the respondents manipulated the
unit and its work to avoid performing the afterhours work with their
own employees.
4 In ordering restoration of the unit, we note that we are not nec-
essarily requiring the hiring of additional employees or the displace-
ment of current employees. Thus, it may be that the Respondent will
be able to comply with our Order by converting or reclassifying its
permanent part-time employees as regular full-time employees.
Duke University and Amalgamated Transit Union,
Local 1328. Case 11–CA–15596
January 13, 1995
DECISION AND ORDER
BY MEMBERS BROWNING, COHEN, AND
TRUESDALE
On March 24, 1994, Administrative Law Judge J.
Pargen Robertson issued the attached decision. The
Respondent filed exceptions and a supporting brief; the
General Counsel filed an answering brief; and the Re-
spondent filed a reply brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions1 and briefs and has
decided to affirm the judge’s rulings, findings, and
conclusions and to adopt the Order as modified.2
The judge found and we agree that the Respondent
unilaterally changed working conditions by removing
regular and overtime work from bargaining unit em-
ployees and unilaterally changing its methods of as-
signing regular work and overtime. The judge’s rem-
edy provides that the Respondent must restore the sta-
tus quo ante and rescind the unilateral changes made
after the August 1991 election and make all affected
unit employees whole for any losses they incurred. In
adopting the judge’s Order, we emphasize that the sta-
tus quo ante remedy includes restoration of the unit to
what it would have been without the unlawful changes.
The Respondent’s unfair labor practices—particu-
larly its unilateral decision to cease hiring full-time
drivers and instead hire permanent part-time drivers—
were the direct and proximate cause of the diminution
of the unit’s ranks from 13 employees prior to the
election to 7 at the time of the hearing. In ordering
that the unit be restored, we seek to undo the effects
of the Respondent’s unlawful acts.3
The Respondent will be permitted to introduce evi-
dence at the compliance stage of this proceeding re-
garding the appropriateness of the restoration portion
of the remedy. As discussed in We Can, Inc., 315
NLRB No. 24 (Sept. 30, 1994), we recognize that
posttrial events may establish that a portion of the rem-
edy imposed by the Board is no longer appropriate.
Thus, if the Respondent has evidence that was unavail-
able at the time of the hearing bearing on appropriate-
ness of this remedy, it may introduce that evidence
during compliance. Lear Siegler, Inc., 295 NLRB 857
(1989).4
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Duke
University, Durham, North Carolina, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order as modified.
1. Substitute the following for paragraphs 2(a) and
(b) and reletter subsequent paragraphs.
‘‘(a) On request bargain in good faith with the
Union concerning the decision to employ permanent
part-time drivers, rescind the unilateral changes affect-
ing bargaining unit employees that were made after the
August 1991 election and restore the status quo ante
1292 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
by restoring the unit to where it would have been with-
out the unilateral changes, and make unit employees
whole, with interest, for any losses they incurred by
virtue of its unilateral changes from August 1991 until
it negotiates in good faith with the Union to agreement
or to a valid impasse in the manner set forth in the
remedy section of this decision. The appropriate unit
is:
All full-time busdrivers employed by the Re-
spondent at its campus at Durham, North Caro-
lina, excluding supervisors as defined in the Act.
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT refuse to bargain in good faith with
Amalgamated Transit Union, Local 1328 as exclusive
collective-bargaining representative in the below-de-
scribed collective-bargaining unit, before implementing
changes in working conditions that affect the following
employees:
All full-time bus drivers employed by us at our
campus at Durham, North Carolina, excluding su-
pervisors as defined in the Act.
WE WILL NOT unilaterally change working condi-
tions affecting the above-described employees by re-
fusing to employ full-time drivers; by employing per-
manent part-time drivers; by restricting the assignment
of work to bargaining unit employees and others when
those assignments affect bargaining unit employees; by
changing the method of assigning overtime to bargain-
ing unit employees; and by making overtime more dif-
ficult for bargaining unit employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of their rights guaranteed them by Section 7 of the Na-
tional Labor Relations Act.
WE WILL rescind unilaterally changed working con-
ditions affecting the above-described employees in-
cluding our practice of refusing to employ full-time
drivers; our practice of employing permanent part-time
drivers to perform bargaining unit work; our practice
of assigning work to bargaining unit employees and
others when those assignments affect bargaining unit
employees; and our practice of assigning overtime bar-
gaining unit work.
WE WILL make whole the unit employees for any
loss of earnings and other benefits suffered as a result
of the unilateral action, with interest.
DUKE UNIVERSITY
Jane P. North, Esq., for the General Counsel.
John M. Simpson, Esq. and Jacqueline DePew, Esq., of
Washington, D.C., for the Respondent.
Tommy N. Mullins, of Roanoke, Virginia, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
J. PARGEN ROBERTSON, Administrative Law Judge. This
hearing was held in Durham, North Carolina, on January 3,
1994. The charge was filed on August 10 and amended on
September 23, 1993. The complaint issued September 27,
1993.
Respondent, the Charging Party, and the General Counsel
were represented and were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and to intro-
duce evidence. Respondent and General Counsel filed briefs.
On consideration of the entire record and briefs, I make the
following
FINDINGS OF FACT
Respondent admitted that it is a private nonprofit edu-
cation institution with its main campus located in Durham,
North Carolina, and that included within its operation is the
Duke University Medical Center, which is an acute care hos-
pital facility.
Respondent also admitted that during the past 12 months
it received at Durham, North Carolina, gross revenue of at
least $1 million, of which $50,000 was received from points
outside the State of North Carolina and that it is now, and
has been at material times, an employer engaged in com-
merce within the meaning of Section 2(5) of the National
Labor Relations Act (the Act). Respondent admitted that the
Charging Party (Union) is a labor organization within the
meaning of Section 2(5) of the Act.
Respondent admitted that employees voted in a secret bal-
lot election on August 29, 1991, and on March 30, 1992, the
Union was certified as the exclusive collective-bargaining
representative for the following described bargaining unit
employees:
All full time bus drivers employed by the Respond-
ent at its campus at Durham, North Carolina, excluding
supervisors as defined in the Act.
1293DUKE UNIVERSITY
After certification, Respondent refused to bargain with the
Union. Charges were filed, the matter was litigated and the
National Labor Relations Board (Board) found that Respond-
ent violated Section 8(a)(1) and (5) by refusing to recognize
and bargain with the Union. That matter is pending on peti-
tion for review in a court of appeals.
In its brief Respondent argued that this case should be
held in abeyance pending the court of appeals ruling. I have
considered that argument but find it does not justify holding
this matter in abeyance.
The General Counsel argued that the heart of this case
deals with an alleged diminution of bargaining unit positions.
The complaint alleged that Respondent unilaterally removed
regular and overtime work from bargaining unit employees
and that Respondent unilaterally changed the manner of as-
signing routes to drivers.
The bargaining unit includes only full-time drivers. Before
the certification of the Union, Respondent employed full-time
and some part-time drivers. The part-time drivers included
student drivers. Some were Duke students and some were
from other schools.
The General Counsel argued that since the certification
Respondent has not filled full-time driver positions. Instead
Respondent has hired part-time drivers that are not students.
Because of that practice the number of unit employees (i.e.,
full-time busdrivers) has dropped from 13 to 7.
Respondent argued that it has not engaged in conduct in
violation of the Act and moreover this matter is barred by
Section 10(b) of the Act.
The 10(b) Question
As shown here Louise Davis testified at the hearing that
she did not notify the Union of changes in working condi-
tions. In a prehearing affidavit she gave Respondent, Davis
testified that she was phoned by a woman from the Union
that she believed was a lawyer. At the hearing Davis testified
that woman was actually Margaret Rafferty, an agent of the
NLRB. Davis was able to recall the woman’s name after that
name was mentioned to her by counsel for General Counsel.
Melton Thompson testified at the hearing that he first con-
tacted Tommy Mullins of the Union in the summer of 1993.
In a prehearing affidavit, which is partly quoted below under
findings, Thompson testified that he phoned Mullins on occa-
sions before 1993 and told Mullins of problems at work.
Alleged Diminution of Unit Positions
Manager of Operations Mark Neilson testified that in Sep-
tember 1991 Respondent employed 13 full-time busdrivers.
There were also part-time drivers employed at that time. Di-
rector of Transportation Services Majestic testified that the
term part time was used at the time of the election in August
1991, to mean casual part-time drivers—students from Duke,
Duke graduates, and students from other colleges.
There have been vacancies in bargaining unit positions
since the August 1991 election. In January 1992, one of the
full-time drivers became a supervisor. One full-time em-
ployee ceased being a driver on February 18, 1992. A full-
time busdriver left Respondent’s employment on April 1,
1992. Driver Melton Thompson switched from full time to
part time in August 1992. Another ceased being a busdriver
on March 10, 1993. One driver retired on December 13,
1993.
Since certification of the Union, Respondent has not hired
any full-time drivers. Mark Neilson testified that 7 full-time
drivers and 40 part-time drivers are currently employed by
Respondent. Some of the part-time drivers work very little
but Respondent started hiring permanent part-time drivers in
1991 and it guaranteed those drivers a minimum of 30 hours
per week.
Mark Neilson testified that before September 1991 for the
most, part-time busdrivers were students. Duke University
students were not permitted to work over 19.9 hours per
week. Respondent did employ students from other colleges
and those students were not limited to 19.9 hours per week.
Respondent director of transportation services, David Ma-
jestic, testified that students were employed as part-time driv-
ers because of the nature of the services. Due to the school
year it was impractical to employ only full-time drivers. It
would have been necessary to lay off drivers during periods
when school was not in session. Additionally, according to
Majestic, some of the routes required as little as 2 hours per
day and that would not conveniently fit in with full-time em-
ployment.
Majestic testified that part-time drivers have historically
outnumbered full-time drivers. In September 1987 there were
53 part-time and 3 full-time drivers. In September 1988 there
were 46 part-time and 6 full-time drivers. In September 1989
there were 45 part-time and 11 full-time drivers. In Septem-
ber 1990 there were 38 part-time and 13 full-time drivers. In
September 1991 there were 40 part-time and 13 full-time
drivers. In September 1992 there were 31 part-time and 9
full-time drivers. In September 1993 there were 37 part-time
and 8 full-time drivers.
According to Majestic, Respondent went to more full-time
drivers in 1989–1990 because student help was getting some-
what unreliable and there had been a pay increase for area
schoolbus drivers and Respondent was competing for that
market.
Mark Neilson testified that in 1991, Respondent decided to
move away from hiring students and toward employing pro-
fessional drivers. Mark Neilson started advertising for and
hiring permanent employees that were not students. Pamela
Hardiman testified that Respondent advertised for full-time
permanent drivers in August 1991. Although Respondent did
not hire full-time drivers after the Union was elected, it is
undisputed that Respondent sought drivers with prior driving
experience, beginning in August 1991. Those hired, including
Pamela Hardiman, were told they were permanent part-time
drivers. Those part-time drivers were guaranteed 30 hours of
work each week. Hardiman was also told that she would be
able to work as much as she wanted.
I credit the complete testimony of Pamela Hardiman. I
base my finding on her demeanor. Much of Hardiman’s testi-
mony was not rebutted.
Director of Transportation Services David Majestic testi-
fied that permanent part-time drivers were hired for the first
time in recent history in September 1991. The first perma-
nent part-time driver was hired on either August 30 or 31,
1991. According to Majestic, Respondent decided to go to
permanent part-time employees because they had used some
ex-students that were casual, upwards of 40 hours a week.
That proved to be a very efficient way of running the oper-
ation. Also, student drivers were dwindling and Respondent
was looking for a more dependable work force.
1294 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
I credit Majestic’s above-mentioned testimony that perma-
nent part-time drivers were hired beginning after the NLRB
election for the first time in recent history.
Pamela Hardiman was hired by Respondent as a part-time
busdriver on September 4, 1991. Four or five additional part-
time busdrivers were hired around that same time. Hardiman
responded to a notice for full-time employees posted at the
employment office on Broad Street in Durham. Hardiman re-
called that she first saw the employment office notice some
2 or 3 weeks before she was hired by Respondent. Before
she was employed, Hardiman drove a schoolbus for Durham
County Schools.
Before being hired, Hardiman was called in for an inter-
view. She was told that Respondent was seeking part-time
rather than full-time drivers as was indicated on the notice
in the employment office. Subsequently Mark Neilson
phoned Hardiman and asked her to attend a second inter-
view. She was interviewed by Neilson and Supervisor Daniel
Breeding. Neilson and Breeding told Hardiman that she
would be guaranteed 30 hours per week and that she could
work as many additional hours each week as she wanted.
Hardiman testified that she did work as many hours as she
wanted, sometimes 50 hours a week, sometimes 30 hours a
week, whatever she signed up for. Hardiman and the other
permanent part-time drivers wear uniforms. All full-time
drivers wear uniforms.
David Majestic testified that since an accident ‘‘last year,’’
there has been a decision to not hire any more Duke stu-
dents. Since September 1993 from one-half to two-thirds of
the part-time drivers work 30 hours or more each week.
Pamela Hardiman testified that Respondent hired 3 addi-
tional permanent part-time drivers in 1992 and 10 additional
permanent part-time drivers were hired in 1993.
David Majestic denied there had been a policy of eliminat-
ing the full-time drivers. Although I credit some of
Majestic’s testimony, I do not credit that testimony. Here, as
with other witnesses, I base my findings on demeanor. Addi-
tionally, I find that this portion of Majestic’s testimony does
not accord with other undisputed or credited evidence. The
credited evidence shows that Respondent planned to employ
full-time drivers shortly before the NLRB election in August.
The testimony of Pamela Hardiman, whom I credit if full,
showed that Respondent advertised for full-time drivers in
August 1991, before the NLRB election. Immediately after
that election Respondent decided for the first time to hire
permanent part-time drivers and not to hire full-time drivers.
The Overtime Issue
Pamela Hardiman, a permanent part-time driver, testified
that part-time drivers are currently working overtime and
driving charters.
Since Respondent started hiring permanent part-time driv-
ers, overtime work has been assigned to both full-time and
part-time drivers on a first come basis for open shifts and on
a seniority basis for charter work, according to David Majes-
tic. Seniority is handled by starting overtime assignments
with the most senior driver. The entire seniority list is ex-
hausted even though it may take several days before return-
ing to the most senior driver on the seniority list. Majestic
testified from documents received in evidence, that the
amount of overtime increased from 1991 to 1992 and de-
creased from 1992 to 1993.
Full-time driver George Morton testified that before Sep-
tember 1991 he was able to get all the overtime he wanted.
During that time he worked 20 to 25 hours and more over-
time each week. Now he does not receive as much overtime.
While previously he was able to check the available overtime
work, now he is not advised about available overtime until,
on occasion, he is approached by Supervisor Breeding and
asked if he wants a particular overtime assignment. Addition-
ally, the available overtime is more difficult. Morton testified
that frequently the overtime offered by Breeding, requires
working until 2 or 2:30 a.m. and he has to be back for his
regular work at 7 a.m.
Full-time driver Wilson Louise Davis testified that she has
been driving a bus for Respondent going on 14 years. Before
Respondent hired permanent part-time drivers, Davis was
able to get all the overtime she wanted. She worked 110 to
120 hours per 2-week pay period. After Respondent hired the
permanent part-time employees Davis was not getting the
overtime work she wanted. She went to Mark Neilson and
asked him why she was not getting as much overtime. Neil-
son told Davis that he had to cut back on their overtime and
he could use the part-time drivers and student drivers on
overtime and avoid going over his budget. Davis testified
that from 1992 she had to ask students to sign for overtime
in order to enable her to work the overtime. Respondent
questioned Davis as to records showing that her overtime ac-
tually increased in 1992 and 1993.
I do not credit Davis’ testimony to the extent it tends to
show that she received less overtime in 1992 or 1993 than
she did before the hiring of permanent part-time drivers. The
record includes documents that show that Davis’ overtime
was not reduced. I do credit her testimony regarding her con-
versation with Mark Neilson. That testimony was not rebut-
ted even though Neilson testified.
I credit the testimony of George Morton. I base my deter-
mination on Morton’s demeanor. I also credit David
Majestic’s testimony as to the procedure Respondent used in
assigning overtime after permanent part-time drivers were
hired. That testimony was in accord with other evidence in
the record.
The Guaranteed Hours Question
The record evidence illustrated that permanent part-time
drivers were hired starting after the election in August 1991.
Those drivers were guaranteed a minimum of 30 hours a
week throughout the year. Pamela Hardiman testified that
when she was interviewed for part-time driving, by Mark
Neilson and Daniel Breeding, they told her she was guaran-
teed 30 hours a week and as many additional hours each
week as she wanted. Full-time drivers are guaranteed 40
hours a week throughout the year.
As shown above I credit the complete testimony of Pamela
Hardiman.
Route Assignments
Director David Majestic testified that routes are reassigned
twice each year. In August before the school year begins,
and in May before the summer recess, drivers are given the
opportunity to select their routes.
Since 1993 routes have been segregated as either full-time
or part-time routes. Since that time full-time drivers have
1295DUKE UNIVERSITY
been restricted to the selection of full 8-hour-per-day routes.
Before 1993, full-time drivers were able to select other
routes including, for example, class change routes.
According to David Majestic, drivers are permitted to se-
lect their routes in order of seniority.
After full-time drivers select all the full-time routes, per-
manent part-time employees are permitted to select the re-
maining full-time routes.
Majestic testified that the full-time drivers are assigned
from 39 to 41 hours per week. He testified that permanent
part-time drivers are assigned from 20 to ‘‘thirty-eight, thir-
ty-nine, forty’’ hours per week.
When asked if a full-time driver would be permitted to se-
lect a part-time route, Majestic answered that was something
he has not encountered and could not say how he would
react.
In 1991 permanent part-time driver Pamela Hardiman
drove a class change route and the Duke Manor Apartments
route. She was assigned those routes by her supervisor, Dan-
iel Breeding, and Mark Neilson.
In 1992 Hardiman drove a class change route and a hos-
pital route. Pamela Hardiman picked those routes off the
board. One side of the board was full time and the other side
was part time. Pamela Hardiman testified that after the full-
time drivers picked their routes from the full-time side of the
board, there were three or four of those 40-hour full-time
routes left. The part-time drivers were then permitted to pick
from among those three or four full-time routes in addition
to the routes listed on the part-time side of the board.
In August 1993 Hardiman selected three class change
routes. She testified that no class change routes were in-
cluded in the board listing for full-time routes. All the full-
time routes listed on the board were 8-hour-per-day routes.
Gloria Chavis is a full-time driver. She started working for
Respondent in August 1989. Chavis testified that in 1989
full-time drivers were permitted to select full 8-hour-per-day
routes, or class change routes.
Since 1988 when Mark Neilson started working for Re-
spondent, the number of bus routes has continuously ex-
panded.
Routes are designated M, P, or D routes. M routes involve
the medical facility. P routes involve the parking lots. D
routes include campus and one apartment complex.
Before 1992 full-time drivers were permitted to select
routes including the D routes. However, beginning in 1992
Mark Neilson started publishing for driver selection, routes
designated PT for part-time and FT for full-time.
Class change routes run 15 or 20 minutes before a class
change until 15 or 20 minutes after the class change. Those
runs are made about six times each school day. During other
times the bus and its driver are idle.
Full-time driver George Morton testified that he drove
class change routes until 1993. Morton testified that class
change routes were not included among the full-time routes
posted on the board for the 1993 school year.
I credit the above evidence showing that Respondent
changed its method of assigning routes to full-time drivers in
1993. That evidence shows that full-time drivers in the bar-
gaining unit were limited to routes designated as full-time
routes. Those routes were full 8-hour-a-day routes. Unlike
the procedure before election of the Union, full-time drivers
did not have the option of selecting routes other than full 8-
hour routes such as class change routes.
Increase in Unit Work
David Majestic testified that Respondent had experienced
an increase in number of bus routes. Respondent went from
about 32,600 hours of service in 1990, 1991 to about 45,000,
46,000 this school year. There are now 20 bus routes and 1
van route. Ten operate year around and 11 are seasonal.
Alleged Change to More Difficult Work
Pamela Hardiman testified that the full-time routes are
physically harder than other routes. She is of the opinion that
those routes, which involve driving 8 hours each day in a
bus that does not have power steering, would affect the driv-
er’s capacity to take charter work outside the normal shift
hours.
Full-time driver George Morton agreed. Morton testified
that most of the charter work he has been offered since Re-
spondent started hiring permanent part-time drivers, were
hard hours requiring him to work to 2 or 2:30 a.m.
I credit both Hardiman and Morton in their testimony
noted above in this section of the decision.
The Permanent Part-Time Drivers
Although student part-time drivers did not wear uniforms,
the permanent part-time drivers do wear uniforms. Full-time
drivers also wear uniforms. The permanent part-time drivers
like full-time drivers, do have occasion to work overtime.
Until August 1991, before the Union’s election, Respond-
ent did not employ permanent part-time employees. Since
August 1991, Respondent has not hired permanent full-time
employees. The regular bargaining unit work is now per-
formed by permanent full-time and permanent part-time em-
ployees. Casual part-time employees perform some irregular
work. Casual part-time employees are not guaranteed work.
Both permanent part-time and full-time drivers are guaran-
teed work each week of the year.
FINDINGS
Section 10(b)
Respondent contended this matter should be barred by
Section 10(b) of the Act in view of the evidence that the
matter complained of involved alleged actions by Respondent
which began in September 1991, a time beyond the 6-month
limitation expressed in Section 10(b).
The General Counsel argued that the 10(b) time did not
start to run until the Union first learned of the alleged illegal
action by Respondent.
There is no dispute regarding Respondent’s alleged con-
duct. In that regard the record shows that Respondent has re-
fused to offer full-time driver jobs since the August 1991
election. However, the law is well established that the 6-
month limitation expressed in Section 10(b) of the Act does
not commence until the charging party knew, or should have
known by the exercise of due diligence, of the alleged unfair
labor practice. Patsy Trucking, 297 NLRB 860, 862 (1990);
NLRB v. Burgess Construction Corp., 596 F.2d 378 (9th Cir.
1979), cert. denied 444 U.S. 940 (1979).
1296 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The limitations period does not begin to run until the party
filing the charge knows or has reason to know that an unfair
labor practice has occurred. Land Air Delivery v. NLRB, 862
F.2d 354, 360 (D.C. Cir. 1988).
Respondent argued that the Union knew of the alleged un-
fair labor practices before 1993.
On cross-examination Louise Davis admitted that she gave
a written statement to Respondent in which she asserted that
she was phoned by a woman from the Union that she be-
lieved to be an attorney, during the summer of 1992. Davis
told that woman that the full-time drivers were not getting
overtime. During the hearing, Davis testified the woman at-
torney was not from the union but was actually Margaret
Rafferty from the NLRB. Davis denied that she had ever
talked to any attorney from the Union. Davis admitted that
she could not recall the attorney’s name when she talked
with Respondent attorney but that she did recall the name
after counsel for General Counsel mentioned the name Mar-
garet Rafferty.
I credit the testimony of Louise Davis that the woman that
phoned her was not a union attorney but was Margaret
Rafferty from the NLRB. I credit that testimony on the basis
of Davis’ demeanor.
Melton Thompson, a busdriver with Respondent, denied
that he talked with Tommy Mullins before June or July
1993. However, in an prehearing affidavit Thompson gave to
Respondent he testified as follows:
4. Since the union election in August 1991, I have
had numerous telephone conversations with Tommy
Mullins of the Amalgamated Transit Union. I usually
call him at home to discuss issues relating to the bus-
drivers at the University. In some of the telephone con-
versations that occurred in 1992, I discussed with Mr.
Mullins the changes that had occurred in the transpor-
tation department since the election. I informed Mr.
Mullins in 1991 and 1992 that nonstudent part-time
drivers were being hired. In 1992, I told Mr. Mullins
that I believed the full-time busdrivers were not given
the same opportunities for overtime work as they had
been, but that the supervisors and managers were giving
overtime to whomever they wanted. These changes did
not affect me personally because I did not want to work
overtime and I ultimately went on part-time status be-
cause I had opened my own business. I saw how these
changes affected the other full-time drivers, and I ex-
plained this to Mr. Mullins.
5. Also in 1992, I explained to Mr. Mullins that I
believed the University had changed the way routes and
shifts were assigned in that the University began to dis-
tinguish between part-time routes and full-time routes.
6. Mr. Mullins was very receptive to the information
I gave him and he indicated on more than one occasion
in 1992 that he would look into these changes.
When asked about the above affidavit Thompson testified
that he was rushed and badgered into signing the statement.
I do not credit Mr. Thompson’s testimony. I base my find-
ing in that regard on his demeanor and the conflicts between
his testimony at the hearing and his testimony in his affida-
vit. I found Thompson to be an incredible witness. Respond-
ent argued that Thompson’s testimony should not be credited
but I should credit his affidavit testimony. I am unable to
credit any of Thompson’s testimony.
International vice president of Amalgamated Transit Union
Tommy Mullins testified that he first learned that full-time
drivers were not being replaced when they left Respondent’s
employment, on July 13, 1993, during a meeting with the
employees.
The affidavit testimony of Melton Thompson appears to
conflict with that of Tommy Mullins. As shown above I find
that Thompson was not credible. A close examination of
Melton Thompson’s affidavit shows that he did not claim
that he told Mullins that the full-time drivers were not being
replaced. Mullins testified as follows regarding his first
knowledge on July 13, 1993, of the matters contained in the
Union’s unfair labor practice charge:
I learned that as full-time drivers left the service of
Duke that they weren’t being replaced and that part-
time drivers were being hired who were non-student
drivers and that they had—were being given thirty-five
to forty hours a week.
The original charge filed by Mullins on August 10, 1993,
alleged:
Since on or about February 10, 1993, and at all times
thereafter, it, by its officers, agents, and representatives,
has unilaterally implemented a change in its hiring poli-
cies by refusing to hire full-time employees and thus
only hiring part-time employees without bargaining
with the employees’ chosen representative—Local 1328
Amalgamated Transit Union.
Respondent Director of Transportation Services David Ma-
jestic testified that he was not aware of any communication
to the Union regarding the decision that Respondent would
not restaff driver positions with full-time people.
I credit the testimony of Tommy Mullins that he did not
learn Respondent’s full-time drivers were not being replaced
until July 13, 1993. I base my credibility determination of
demeanor and the fact that no evidence was offered to show
the Union learned of Respondent’s failure to replace full-
time drivers before July 1993.
The record shows that Respondent failed to replace full-
time drivers as vacancies were created after the August 1991
election of the Union as representative of the full-time driv-
ers. The record also shows that the Union did not learn of
that new practice until July 1993.
The charge in this matter was filed by the Union on Au-
gust 10, 1993. Therefore, the 10(b) time bar ran from Feb-
ruary 10, 1993. Respondent’s first opportunity to replace a
full-time driver occurred in early 1992, which was well out-
side the 10(b) period. However, the Union first learned about
Respondent’s alleged unfair labor practices within 1 month
of the date it filed the charge.
In determining whether Section 10(b) bars the Union’s
charge it is necessary to consider whether the Union knew
or by exercise of due diligence should have known, of Re-
spondent’s alleged unlawful acts more than 6 months before
the filing of the charge. Patsy Trucking, supra.
Although the Union had been certified bargaining rep-
resentative of the full-time busdrivers in 1992, Respondent
has continued to refuse to recognize and bargain with the
1297DUKE UNIVERSITY
Union. In that regard see Duke University, 306 NLRB 555
(1992), where the Board considered the Respondent’s request
for review of the Regional Director’s determination that a
unit of full-time busdrivers was an appropriate unit. There,
when the Board decided that the unit was appropriate on
February 28, 1992, the Board found that, among other things,
the record showed that Respondent ‘‘directly employs about
14 full-time drivers, and plans to hire several more.’’
[T]his cannot be deemed notice to the Union where the
Union is being denied its lawful status as bargaining
representative. In such a situation, a Union has no stew-
ards to whom it can look to police working conditions,
and members of an in-plant organizing committee are
not the same as stewards. . . . Clark Equipment Co.,
278 NLRB 498, 529 (1986).
There was no evidence, credible or otherwise, showing
that the Union actually knew of Respondent’s failure to re-
place full-time drivers when vacancies occurred until July
1993. Moreover, there was no showing that the Union should
have known of Respondent’s practice in that regard before
July 1993. The Union did not enjoy recognition and was not
able to perform its function as collective-bargaining rep-
resentative for grievance procedure or otherwise. Cf. Moeller
Bros. Body Shop, 306 NLRB 191 (1992), where the Board
found that the union, in the exercise of reasonable diligence,
should have become aware of the alleged unfair labor prac-
tices more than 6 months before it filed the change. See also
Farmingdale Iron Works, 249 NLRB 98, 99 (1980), enfd.
mem. 661 F.2d 910 (2d Cir. 1981); Alaska Pulp Corp., 300
NLRB 232 (1990).
The Unfair Labor Practice Allegations
After the Union was elected bargaining representative of
the full-time drivers, the Union requested that Respondent
bargain. Respondent refused.
Thereafter, Respondent failed to fill bargaining unit posi-
tions as full-time drivers left the unit. The record shows that
Respondent decided to stop its practice of hiring student
drivers. Although Respondent elected to employ permanent
drivers and to extend to those permanent drivers a guaranteed
workweek throughout the year, Respondent elected to keep
those drivers outside the bargaining unit by calling them part
time. Respondent implemented a new practice of employing
permanent drivers as part-time employees.
Beginning in late August and September 1991, Respondent
hired permanent drivers. The testimony of Pamela Hardiman
showed that Respondent advertised for permanent full-time
employees. After the election Respondent told driver appli-
cants the prospective jobs were permanent part time with a
guarantee of 30 hours per week and the permanent part-time
driver could work as many additional hours as desired. On
the basis of my observation of her demeanor I credit the tes-
timony of Pamela Hardiman. Hardiman is currently em-
ployed by Respondent. Her testimony mentioned in this para-
graph was not disputed.
The record shows that the permanent part-time drivers
hired beginning in 1991 were similar to full-time drivers in
many respects. They, like full-time drivers and unlike other
part-time drivers, wore uniforms. They, like full-time drivers
and unlike other part-time drivers, were guaranteed work
each week throughout the year. Other part-time drivers occa-
sionally worked overtime. However, there was no evidence
that those other part-time drivers were ever guaranteed a
minimum number of work hours during any particular week.
Respondent argued that the fact that permanent part-time
drivers were hired before any of the full-time drivers left,
shows that the part-time drivers were not used to replace unit
employees.
It should be noted that a bargaining unit is comprised of
jobs or job classifications and not of the particular persons
working at those jobs. Thus, enlarging a unit by hiring addi-
tional unit employees when additional unit work is available
does not impair the integrity of the unit. However, hiring
people outside the unit to do that work does impair the unit’s
integrity. NLRB v. Brown-Graves Lumber Co., 949 F.2d 194
(6th Cir. 1991).
As shown here, the Board when reviewing the determina-
tion that the bargaining unit here was an appropriate unit,
mentioned that Respondent employed around 14 full-time
busdrivers and anticipated hiring more.
That point, whether in fact Respondent intended to hire
more full-time drivers, shows that the integrity of the unit is
the issue. Respondent may not unilaterally transfer unit work
to a new class of employees.
As shown above the permanent part-time employees hired
beginning in late August 1991 performed bargaining unit
work. As shown here, their work assignments including as-
signed routes and overtime work, was work that could have
been performed by bargaining unit employees. Moreover, the
record showed that unit work has continued to increase dur-
ing the period after the Union was selected bargaining rep-
resentative of unit employees.
Part-time student drivers also performed work that could
have been performed by unit employees. However, as shown
above, Respondent had decided to move away from employ-
ing student drivers because they had become unreliable. That
factor plus evidence that Respondent advertised for full-time
employees in August 1991 shows that Respondent intended
for the additional work to be performed by employees in the
unit. It was only after the election of the Union, that Re-
spondent elected to designate those new employees as per-
manent part time.
Respondent cited Craft Electric Co., 293 NLRB 1074
(1989), for the proposition that it could replace full-time
drivers with part-time drivers. However, in Craft the em-
ployer was involved in a 150-day completion date and it
proved through credited evidence that when three journey-
men left the job, the remaining work did not require journey-
man skills. Therefore, it was found that Respondent did not
make a unilateral change by employing other than journey-
men. Here, there was no credible evidence showing that the
permanent part-time work could be distinguished from bar-
gaining unit work. In fact, the evidence showed that opposite
was true. Additionally, the evidence proved that before the
election, Respondent planned to employ additional full-time
drivers (Pamela Hardiman testified that Respondent’s notice
that it was seeking applicants for busdriver in August 1991,
indicated the positions would be full-time).
Respondent also cited Optica Lee Borinquen, Inc., 307
NLRB 705 (1992). However, there the credited evidence
proved that respondent hired more general practitioners rath-
er than bargaining unit optometrists, because of market con-
1298 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
ditions dictated by a shortage of optometrists. In the instant
case the credited evidence showed that Respondent adver-
tised for full-time drivers and it was Respondent’s election
to hire permanent part-time drivers. There was no showing
of a shortage of employees seeking full-time positions. In
fact, here again, the evidence proved the opposite was true.
The permanent part-time drivers served in the fashion of full-
time drivers by working guaranteed workweeks of at least 30
and sometimes 50 hours each week.
The record shows that permanent employees hired to per-
form the same work performed by bargaining unit employ-
ees, were classified part time even though their conditions of
employment differed from what Respondent had classified as
part time before that date. Respondent made that change
without first giving the Union an opportunity to bargain.
While the record shows that some of the full-time drivers
may have actually worked more overtime in 1992 or 1993,
it is apparent that Respondent changed its practice of assign-
ing overtime after the Union’s election. Charter overtime was
assigned by ‘‘seniority.’’ That seniority system enabled driv-
ers to claim overtime only when the supervisor asked the
driver if he or she wanted overtime. After the August 1991
election Respondent selected both full-time and permanent
part-time drivers for overtime. Additionally, when Respond-
ent changed its method of assigning work in 1993, full-time
drivers were restricted to full 8-hour shifts. The evidence il-
lustrated that frequently overtime would necessitate working
until 2 or 2:30 a.m., making it difficult for a full-time driver
to work that overtime. Moreover, the fact that some of the
full-time drivers worked more overtime in 1992 or 1993,
does not prove that those drivers did not lose overtime dur-
ing that period. As shown above, the total time spent driving
buses for Respondent has continued to increase. Full-time
drivers may have lost opportunities for overtime regardless
of whether their total overtime hours increased or decreased.
In summary, the evidence proved that Respondent made
unilateral changes after the Union was elected which im-
pacted on overtime for bargaining unit employees. Those
changes effected full-time drivers in two respects. As shown
here, full-time drivers were limited to full 8-hour shifts. That
impacted on overtime by making it more difficult to handle
fraternity charters which oftentimes required driving until 2
or 2:30 a.m. Some full-time drivers were required to report
back for 7 a.m. shifts. This made the fraternity charters dif-
ficult to handle for those full-time drivers. David Majestic
testified that fraternity charters constitute most of the charter
work.
Second, the overtime opportunities were not posted. In-
stead the supervisor went to the next driver on the seniority
list and asked if he or she wanted a specific overtime. That
change resulted in fewer opportunities to bid on overtime
and limited the scope of available overtime opportunities.
By failing to bargain about its changes in methods of as-
signing regular work and overtime, before implementation,
Respondent engaged in conduct in violation of Section
8(a)(1) and (5) of the Act. That change impacted on regular
and overtime work for unit employees and is a substantial,
material, and unlawful unilateral change constituting a viola-
tion of the Act. NLRB v. Brown-Graves Lumber Co., 949
F.2d 194, 197 (6th Cir. 1991).
Respondent changed to a policy of refusing to hire unit
employees; and to a policy of guaranteeing part-time drivers
30 hours of work each week throughout the year. That
change impacted on bargaining unit employees. Respondent
failed to offer the Union an opportunity to bargain before
making those changes and thereby engaged in conduct in
violation of Section 8(a)(1) and (5) of the Act. Land O’
Lakes, 299 NLRB 982 (1990); Brown-Graves Lumber Co.,
300 NLRB 640 (1990) enfd. 949 F.2d 194 (6th Cir. 1991);
Harris-Teeter Super Markets, 307 NLRB 1075 (1992).
The record also shows that Respondent unilaterally
changed its route assignment procedure. Full-time drivers
were limited to full, 8-hour routes from 1993. As shown
above that change impacted on bargaining unit employees by
limiting their overtime options. Some of the overtime includ-
ing that requiring late night driving, was more difficult due
to the change in route assignment procedures. Additionally
the change in route assignments resulted in what was perhaps
more difficult work of having to drive 8 hours without power
steering without a break.
CONCLUSION OF LAW
Respondent violated Section 8(a)(1) and (5) of the Act by
unilaterally removing regular and overtime work from bar-
gaining unit employees and by unilaterally changing the
method of assigning routes to drivers.
THE REMEDY
Having found that Respondent has engaged in unfair labor
practices, I shall recommend that it be ordered to cease and
desist therefrom and to take certain affirmative action de-
signed to effectuate the policies of the Act.
I recommend that, on request, the Respondent bargain with
the Union and, if an understanding is reached, embody the
understanding in a signed agreement. On request Respondent
must specifically bargain with the Union concerning the de-
cision to employ permanent part-time employees. On request
Respondent must restore the status quo ante and rescind the
unilateral changes made after the August 1991 election and
make all affected unit employees whole for any losses they
incurred by virtue of its unilateral changes from August 1991
until it negotiates in good faith with the Union to agreement
or valid impasse. If the Union elects to have previous condi-
tions restored, calculations of the sums and payments nec-
essary to make employees whole, with interest, shall be com-
puted in accordance with normal Board policy. See Ogle
Protection Service, 183 NLRB 682 (1970); New Horizons for
the Retarded, 283 NLRB 1173 (1987); Merryweather Optical
Co., 240 NLRB 1213, 1216 fn. 7 (1979).
On these findings of fact and conclusion of law and on the
entire record, I issue the following recommended1
ORDER
The Respondent, Duke University, Durham, North Caro-
lina, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain in good faith with Amalgamated
Transit Union, Local 1328 as the exclusive bargaining rep-
1299DUKE UNIVERSITY
resentative of the employees in the bargaining unit described
below by unilaterally changing working conditions of bar-
gaining unit employees by removing regular and overtime
work from bargaining unit employees and by unilaterally
changing the method of assigning routes to drivers.
(b) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) On request, bargain with Amalgamated Transit Union
Local 1328 as the exclusive representative of the employees
in the following appropriate unit concerning terms and condi-
tions of employment and, if an understanding is reached, em-
body the understanding in a signed agreement:
All full-time busdrivers employed by the Respondent
at its campus at Durham, North Carolina, excluding su-
pervisors as defined in the Act.
(b) On request bargain in good faith with the Union con-
cerning the decision to employ permanent part-time drivers,
rescind the unilateral changes affecting bargaining unit em-
ployees that were made after the August 1991 election and
make unit employees whole, with interest, for any losses
they incurred by virtue of its unilateral changes from August
1991 until it negotiates in good faith with the Union to
agreement or to a valid impasse in the manner set forth in
the remedy section of this decision.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at it’s Durham, North Carolina facilities copies of
the attached notice marked ‘‘Appendix.’’ Copies of the no-
tice, on forms provided by the Regional Director for Region
11, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.