School Bus Services

National Labor Relations Board - Board Decisions

Aug 31, 1993

312 N.L.R.B. 1 (N.L.R.B. 1993)

1
312 NLRB No. 1
SCHOOL BUS SERVICES
1 In adopting the judge’s finding that the former Special Mobility
Services (SMS) employees currently employed by the Respondent
comprise an appropriate bargaining unit, we find that P. S. Elliott
Services, 300 NLRB 1161 (1990), relied on by the Respondent, is
readily distinguishable from the facts here. In that case, the employ-
ees lost their separate identity and were fully integrated into the ex-
isting operations of the successor employer. Here, in contrast, the
former SMS paratransit employees continued to perform a unique
function for the successor employer and were not integrated into the
Respondent’s existing transportation operations. Further, we note
that, contrary to the Respondent’s argument, the Board has clearly
held that an employer which takes over only a portion of a prede-
cessor’s operation can be found to be a successor. See, e.g.,
Hydrolines, Inc., 305 NLRB 416 (1991). Accordingly, we find the
Respondent’s assertions regarding what subsequently happened to
that portion of SMS’ operations which was not taken over by the
Respondent irrelevant to our determination.
2 We shall modify the judge’s recommended Order to set forth the
bargaining unit. 1 All dates are in 1991 unless stated otherwise.
School Bus Services, Inc. and Amalgamated Transit
Union, Division 757, AFL–CIO, CLC. Case 36–
CA–6566
August 31, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On March 23, 1993, Administrative Law Judge
James S. Jenson issued the attached decision. The Re-
spondent filed exceptions and a supporting brief. The
General Counsel and the Charging Party filed answer-
ing briefs.
The National Labor Relations Board has considered
the decision and record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings,
findings,1 and conclusions and to adopt the rec-
ommended Order as modified.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, School Bus Services, Inc.,
Portland and Gresham, Oregon, its officers, agents,
successors, and assigns, shall take the action set forth
in the Order as modified.
Substitute the following for paragraph 1(a).
‘‘(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and condi-
tions of employment with Amalgamated Transit Union,
Division 757, AFL–CIO, CLC, as the exclusive bar-
gaining representative of its employees in the follow-
ing appropriate unit:
All employees working under its Tri-Met con-
tracts at its Portland and Gresham, Oregon loca-
tions; excluding office clerical employees, profes-
sional employees, guards, and supervisors as de-
fined in the Act.’’
Linda Scheldrup, Esq., for the General Counsel.
Verne W. Newcomb, Esq., of Portland, Oregon, for the Re-
spondent.
David S. Paull, Esq., of Portland, Oregon, for the Union.
DECISION
STATEMENT OF THE CASE
JAMES S. JENSON, Administrative Law Judge. I heard this
matter on October 22 and 23, 1991, in Portland, Oregon.1
The charge was filed on March 14, the complaint issued on
May 23 and was amended at the hearing. The complaint, as
amended, alleges the Respondent is the successor to Special
Mobility Services/Odyssey Travel with respect to ‘‘special
needs transportation services and driver training services’’ in
Multnomah County, Oregon, pursuant to a contract with Tri-
County Metropolitan Transportation Division of Oregon (Tri-
Met), a Portland, Oregon regional transportation system, and
that since February 12, Respondent has refused to recognize
and bargain with the Union which was certified as the rep-
resentative of the predecessor’s employees on March 15,
1990. The Respondent denies it is the legal successor and ar-
gues (1) that the General Counsel failed to establish that the
Union represented a majority of its employees; (2) that the
alleged unit is not appropriate since it includes two locations,
whereas the certification is for a single location; (3) that its
paratransit and school bus operations have a high degree of
functional integration, thereby rendering the alleged appro-
priate unit to be inappropriate; and (4) that the Union essen-
tially abandoned its collective-bargaining agreement with the
predecessor, as well as abandoning the employees. All par-
ties were given full opportunity to appear, to introduce evi-
dence, examine and cross-examine witnesses, to argue orally,
and to file briefs. Briefs were filed by each of the parties and
have been carefully considered.
On the entire record in the case, and from my observation
of the witnesses and their demeanor, I make the following
I. JURISDICTION
School Bus Services, Inc. is engaged in the business of
providing public bus service to elderly and infirm passengers
and school bus services to several school districts in Oregon
and Washington. During the 12-month period preceding
issuance of the complaint, it had gross sales of goods and
services valued in excess of $250,000 and purchased and re-
ceived goods and materials valued in excess of $50,000 in
Oregon directly from sources outside Oregon or from suppli-
ers within Oregon who in turn obtained such goods and ma-
terials directly from sources outside Oregon. It is admitted
and found that Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATION INVOLVED
It is admitted and found that the Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. ISSUES
1. Whether Respondent is the successor to the Special Mo-
bility Service (SMS) paratransit operation.
2. Whether the paratransit drivers working for Respondent
under the Tri-Met contracts constitute an appropriate collec-
tive-agreement unit.
3. Whether Respondent violated Section 8(a)(1) and (5) by
refusing to recognize and bargain with the Union as the rep-
resentative of paratransit drivers at its Portland and Gresham
locations.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Setting
Tri-County Metropolitan Transportation Division of Or-
egon (Tri-Met) provides mass transit, bus, and light rail serv-
ices in Multnomah, Washington, and Clackamas Counties,
Oregon. Tri-Met contracts with private contractors to provide
paratransit services to handicapped persons and senior citi-
zens in the tri-county area. Special Mobility Services (SMS)
is a nonprofit corporation engaged in providing door-to-door
transportation of handicapped and elderly persons in Portland
and Eugene, Oregon. The owner of SMS also owns Odyssey
Travel Club, a for-profit travel club for senior citizens. In ad-
dition to furnishing its members transportation to local group
functions, Odyssey Travel provides transportation to and
from the airport in conjunction with group cruises and inter-
national trips. From February 1986 through March 31, 1991,
Tri-Met contracted with SMS to provide paratransit services
under a single contract for Multnomah County, the only
county involved in this proceeding. SMS employed approxi-
mately 70 drivers under the Tri-Met contract. Odyssey em-
ployed four to five drivers, who drove a total of 20 hours
a week for Odyssey. While none of the Odyssey drivers ever
drove for SMS, six of the SMS drivers also drove part time
for Odyssey.
On March 15, 1990, the Union was certified as the collec-
tive-bargaining representative of ‘‘all employees’’ of Odys-
sey and SMS at 1132 S.E. Salmon, Portland, Oregon. Effec-
tive August 1, 1990, the maintenance of the Tri-Met vehicles
and the scheduling and dispatching were transferred from
SMS to Buck Medical Services in accordance with a modi-
fication of the then contract between SMS and Tri-Met. Con-
sequently, SMS laid off its dispatchers and maintenance per-
sonnel. Following negotiations with the Union, a collective-
bargaining agreement was signed September 13, 1990, effec-
tive the date of signing. Inasmuch as the parties expected the
Tri-Met paratransit contract would go out for general bid for
the first time since 1986, the expiration date of the contract
was left open in order to insert a date 3 years from the date
it was expected SMS would be awarded the next contract
with Tri-Met. The contractual unit was comprised of about
4–6 Odyssey drivers and about 70 paratransit drivers.
On October 5, 1990, Tri-Met issued the ‘‘request for pro-
posals,’’ RFPs, for bids on four contracts, two covering
Multnomah County which was coextensive with the area
covered under the SMS-Tri-Met contract. Respondent was
awarded the two Multnomah County contracts. While SMS
and the Union both challenged the award, and supplemental
bids were requested, on February 20, Respondent was noti-
fied by Tri-Met that it intended to award the East and West
Multnomah County contracts to it. The latest RFP required
the successful bidder to hire the existing drivers to meet its
needs. The record shows that on February 12, prior to Tri-
Met’s notification of intent to award the contracts to Re-
spondent, Union Business Agent Heintzman wrote Respond-
ent that the Union represented the existing SMS workers and
demanded immediate bargaining. By letter dated February
14, Respondent’s president responded that it would not be
appropriate to meet with the Union since it had not received
any information from Tri-Met that it had been awarded the
contract. Heintzman testified he then contacted Tri-Met offi-
cials who confirmed the award to Respondent, and on Feb-
ruary 27 wrote the president of Respondent that he under-
stood ‘‘that you have since been notified that you are the
successful bidder and of Tri-Met’s intent to award you the
contract.’’ He again requested a meeting to negotiate. Re-
spondent’s president responded by letter dated March 1 that
while it had been awarded a ‘‘letter of intent’’ from Tri-Met,
it had not been officially notified of the award, which was
being appealed, but it was nevertheless arranging to inter-
view all of the present drivers so that it would be able to
proceed if it was awarded the contract.
On February 25, Respondent notified the SMS paratransit
drivers by letter that it anticipated being awarded the new
contract covering East and West Multnomah Counties. The
letter set forth the requirements for hiring and requested they
contract Sandy Davis or Diana Plahn, area managers for Re-
spondent SMS and admitted supervisors, to set up interview
appointments. The letter stated that if the employee did not
respond by March 6, it would be assumed the individual
wasn’t interested in a job.
On February 26, Respondent and Tri-Met signed a ‘‘start-
up contract,’’ effective through March 10, to cover the start-
up costs that Respondent would incur in preparation for start-
ing the Multnomah County paratransit service on April 1.
By letter dated March 6, the Union protested the Respond-
ent’s ‘‘attempts to individually bargain with members’’ of
the Union and requested that the Respondent meet with it for
the purpose of bargaining on March 14. Respondent’s presi-
dent responded by letter of March 8, that it still did not have
a signed contract, and since another protest had been made
against the program, he was not certain when the matter
would be settled and, if awarded the contract, when that
would occur. He then suggested that if the Union did in fact
represent a majority of its employees in ‘‘an appropriate bar-
gaining unit,’’ it would meet with the Union. He went on to
suggest that the Union ‘‘go to the NLRB and let the govern-
ment decide what the appropriate bargaining unit is for
School Bus Services, Inc. and let the employees decide in an
election whether they want your organization to represent
them.’’
On March 9, Respondent sent another letter to those that
had been interviewed informing them of orientation meet-
ings, drug screening procedures, the need for a driving record
printout, and the fact Respondent was setting up times for
employees to come in and try on sample sizes of uniforms
so they would be ready by April 1. An attachment to the let-
ter set out the hourly pay rate, listed paid holidays, vacation
3SCHOOL BUS SERVICES
and sick leave policies, medical coverage, probationary pol-
icy, and the seniority system. A March 14 letter thanked the
drivers for attending the orientation meetings, requested they
confirm their intentions with respect to continuing on as a
paratransit driver, and enclosed a revised wage and benefit
policy. The letter stated that while Tri-Met had not yet exe-
cuted a contract with Respondent, faced with an April 1
start-up date, it was necessary to proceed on the assumption
it would do so. Also by letter of March 14, the Union in-
formed Respondent that all current employees of Special
Mobility Services, Inc., shown on an attached SMS seniority
list, were represented by the Union and were exercising their
right under the Tri-Met contracts to retain their employment
after April 1.
On March 29, the East and West Multnomah Counties
paratransit contracts were signed by Tri-Met and Respondent
effective March 11, 1991, to June 30, 1992. On April 1, Re-
spondent took over the operation of Tri-Met’s paratransit
services from Special Mobility Services. The employees
hired by Respondent, 51 of the 65, had been employed by
Special Mobility Services. Respondent has refused to recog-
nize and bargain with the Union as the representative of Re-
spondent’s paratransit drivers driving under the East and
West Multnomah Counties Tri-Met contracts.
B. Contentions of the Parties
The General Counsel contends Respondent is a successor-
employer to Special Mobility Services and that its refusal to
recognize and bargain with the Union violates Section
8(a)(5) of the Act. The Respondent denies it is the successor
to SMS, questions the majority status of the Union, argues
that the unit alleged in the complaint is inappropriate and
that the Union abandoned its agreement with SMS as well
as SMS’s employees.
C. Successorship
The doctrine of successorship is designed to ensure that
employee rights are not curtailed by ‘‘a mere change of em-
ployers or of ownership in the employing industry.’’ NLRB
v. Burns Security Services, 406 U.S. 272, 279 (1972). See
also Zim’s IGA Foodliner v. NLRB, 495 F.2d 1131, 1140
(7th Cir. 1974), cert. denied 419 U.S. 838 (1974). Thus,
where there is no change in the essential nature of the enter-
prise and a majority of the employees after the change of
ownership or management were employed by the predecessor
employer, the new employer is a ‘‘successor’’ who must rec-
ognize the incumbent union and deal with it as the bargain-
ing representative of the employees. Burns, supra at 279–
281. The bargaining obligation of a ‘‘successor-employer’’
derives from both the specific mandate of Sections 8(a)(5)
and 9(a) of the Act that an employer must bargain with
‘‘representatives designated or selected for the purposes of
collective bargaining by the majority of the employees in a
unit appropriate for such purposes,’’ and from the general ac-
knowledgement that a mere change in ownership does not
destroy the presumption of continuing employee support for
a certified or voluntarily recognized union. See Burns, supra
at 277–279; NLRB v. Denham, 469 F.2d 239, 243–244 (9th
Cir. 1972). ‘‘The basic rationale is that a mere change in
ownership, without an essential change in working condi-
tions, would not be likely to change employee attitudes to-
ward representation.’’ Premium Foods v. NLRB, 709 F.2d
623, 627 (9th Cir. 1983).
The key question in each case is whether there is substan-
tial continuity of the employing enterprise. In making its de-
termination, the Board takes into consideration various fac-
tors, including the percentage of employees who were em-
ployed by the previous employer, the extent to which their
former supervisors have been retained, the identity of skills
used and functions performed by the employees, the continu-
ation of the business in the same physical facility with the
same or similar equipment, the continuity of products sold or
services rendered, and the identity of the clientele. See
Burns, supra at 279, 280 fn. 4; Zim’s IGA Foodliner, supra
at 1140–1142.
Applying the above standards to the record facts, it is con-
cluded that there was substantial continuity in the employing
enterprise between SMS and Respondent, and, accordingly,
that Respondent was SMS’s ‘‘successor’’ for the purposes of
the Act.
As the record clearly shows, to man its paratransit oper-
ations under the Tri-Met contracts, Respondent was required
to offer employment to the SMS paratransit drivers, and in
fact hired 51 former SMS drivers out of a total complement
of 65. Of particular significance is the fact that, from the per-
spective of the employees, their jobs did not change. There
was no hiatus between employment by SMS and Respondent.
When Respondent took over the Tri-Met contracts on April
1, the paratransit drivers continued driving the same Tri-Met
owned vehicles they had driven while working for SMS,
drove the same routes and transported the same passengers.
The training required of paratransit drivers by both SMS and
Respondent is similar, both requiring defensive driving, first
aide, CPR and ‘‘Passenger Assistance.’’ The seniority list
from SMS was carried over to Respondent and used in mak-
ing route assignments. Employees were given credit for the
time they worked for SMS and retained their positions on the
seniority list. Also, the geographic area served by Respond-
ent under its two contracts with Tri-Met—Multnomah Coun-
ty—is the same geographic area covered by SMS under its
single contract. While Respondent did not hire the SMS su-
pervisors, and the paratransit buses are kept at two locations
instead of one when SMS was the contractor, no single fac-
tor is determinative, the Board instead looking at the totality
of the circumstances. Indeed, in Burns, supra at 280 fn. 4,
Burns utilized its own supervisors, and the Supreme Court
nevertheless concluded that Burns was a successor-employer.
The factors favoring successorship far outweigh the lack of
continuity in supervision and the fact a few of the paratransit
drivers operate out of the Gresham facility where their vehi-
cles are kept. The record is clear that from the employee’s
perspective, their jobs remained essentially unaltered. There
being substantial continuity in the employing enterprise be-
tween SMS and Respondent, it is found that Respondent is
SMS’s successor.
D. Appropriate Bargaining Unit
On March 15, 1990, the Union was certified as the collec-
tive-bargaining representative of the employees of Odyssey
Travel and Special Mobility Services in the following unit:
All employees of the Employer at 1132 S.E. Salmon,
Portland, Oregon, excluding office clerical employees,
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
professional employees, guards and supervisors as de-
fined in the Act.
The 1990–1993 collective-bargaining agreement between
‘‘Special Mobility Services/Odyssey Travel Club’’ and the
Union describes the bargaining unit as including:
All employees in the classifications of bus driver, lead
bus driver, mechanic [scheduler, dispatcher] and all
other employees, regardless of title, who perform the
work normally performed by those classifications.
The complaint alleges the following employees of Re-
spondent constitute an appropriate unit:
All employees of the Employer working under the Tri-
Met contract at the Employer’s Gresham, Oregon and
Portland, Oregon locations; excluding office clerical
employees, professional employees, guards and super-
visors as defined in the Act.
The Respondent argues that the two location unit alleged
in the complaint is inappropriate; that there is no presump-
tion that the Union represented a majority of the employees
in the alleged unit; that it was not shown that the Union did
in fact represent a majority of the employees, but rather that
it was disinterested in representing them since it never en-
forced the union-security clause in its collective-bargaining
agreement with SMS nor collected any initiation fees, dues,
or assessments; that the Union took no other action to en-
force its collective-bargaining agreement with SMS except as
it applied to Odyssey Travel employees; that it has no em-
ployees at 1132 S.W. Salmon, Portland, the site named in the
certification; and that the facts establish a unit consisting of
school bus drivers and paratransit drivers at its Gresham lo-
cation is appropriate.
As the record shows, during the last few months of the
SMS-Tri-Met agreement, the certified unit consisted of ap-
proximately 70 paratransit and four or five Odyssey drivers.
The collective-bargaining agreement between SMS and the
Union was signed September 13, 1990, but since the parties
expected the Tri-Met paratransit contract would be put out
for bid shortly, the expiration date was left open so that a
date could be inserted 3 years from the date it was expected
SMS would be awarded the next contract. The record shows
that Union Business Agent Heintzman departed the Portland
area 2 days following ratification of the collective-bargaining
agreement to participate in the Desert Storm conflict. Con-
sequently, although the SMS employees were enrolled as
members of the Union, the paper work for dues collection
was not begun, and by the time Heintzman returned from
Desert Storm, it had been determined that Respondent was
to be awarded the Tri-Met paratransit contracts to service
Multnomah County in the place of SMS. In these cir-
cumstances, the argument that the Union had either aban-
doned or was disinterested in representing the paratransit
drivers, is totally without merit. In this regard, it is noted that
the Union asserted its representative capacity as soon as it
learned Respondent was successful in bidding the Tri-Met
contracts. Thus, there was no evidence presented by Re-
spondent that the Union had either abandoned or disclaimed
interest in representing the former SMS employees or that it
had any valid basis for doubting the Union’s continued ma-
jority status.
Prior to being awarded the Tri-Met paratransit contracts,
Respondent’s operations were limited to transporting school
children pursuant to contracts with a number of school dis-
tricts in Oregon and one in Washington. It operated 308 reg-
ular school bus routes utilizing what appears to be a standard
type of school bus. In conjunction with its school contracts,
Respondent employed 57 special education bus drivers, only
a few of which operate out of the Gresham facility, for the
transport of special needs children to and from school. They
operate buses similar to those driven by paratransit drivers.
None operate out of the Portland facility. Subsequent to ac-
quiring the Tri-Met contracts, Respondent also acquired a
contract with the Port of Portland to operate an airport bus
service. The school bus drivers transport school age children
whereas the paratransit drivers transport elderly and disabled
adults. School bus drivers drive fixed routes whereas para-
transit drivers do not, their routes depending on the needs of
the client. School buses do not have seat belts whereas para-
transit business have various types of restraints. Clients uti-
lizing paratransit buses are encouraged to pay for their trans-
portation through either ticket purchases or depositing cash
in a fare box. This does not apply to school children. Vehi-
cles driven by school bus and special education drivers are
painted yellow, have ‘‘School Bus Services, Inc.’’ printed on
the sides and are clearly identified as school buses in accord-
ance with state law. Paratransit vehicles are primarily white
and display the Tri-Met colors and logo. School buses are ei-
ther owned by Respondent or leased from the various school
districts, whereas all paratransit vehicles are owned by Tri-
Met. While the regular school buses do not have radios, both
the paratransit and special education vehicles do. All Tri-Met
paratransit vehicles are dispatched by Buck Ambulance Serv-
ice while school buses are dispatched by Respondent. In the
event of inclement whether, Tri-Met decides whether the
paratransit buses will operate and relays the decision to Buck
Ambulance Service. The various school districts determine
whether the schools will operate in inclement weather and
advise Respondent’s dispatcher. School bus drivers drive
split shifts, driving to and from school totalling 3-1/2 to 4-
1/2 hours per day, Monday through Friday only during the
school year and have school holidays and vacation periods
off. Paratransit drivers work 6-1/2 hours part-time or 8 to 10
hours full-time shifts, 6 days a week. They work year around
and observe Tri-Met designated holidays. All paratransit
drivers are under the supervision of Area Manager Diana
Plahn, whose business cards identify her as either ‘‘area
manager’’ or ‘‘lift program manager.’’ Area Manager Sandy
Davis has an office in Portland and another in Gresham and
is responsible for the day-to-day operation of the Gresham
school bus operation. She testified that while some of her
paratransit duties had been ‘‘put on hold,’’ she hoped to re-
sume them shortly. Both she and Plahn worked together in
setting up the paratransit system at the Gresham office. The
State of Oregon licensing requirements for school bus and
paratransit drivers is different. While some of the paratransit
drivers employed by SMS also possessed the Oregon School
Bus license as a consequence of having driven school buses
for employers prior to working for SMS, it does not appear
they drove school buses for Respondent. Training for school
bus and paratransit drivers is different. Paratransit drivers are
5SCHOOL BUS SERVICES
2 Morand Bros. Beverage Co., 91 NLRB 409, 418 (1950), enfd.
190 F.2d 576 (7th Cir. 1951).
3 The Union’s argument that the Respondent was bound by the
collective-bargaining agreement between it and SMS is without
merit. That issue was set to rest by the Supreme Court in Burns, 406
U.S. at 281–282.
4 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.
required to wear a Tri-Met uniform. School bus drivers must
be neat and clean but do not wear uniforms. Since medical
benefits are available only to full-time employees, unlike
paratransit drivers, school bus drivers are not covered. There
is a single seniority list covering the paratransit drivers at
both the Portland and Gresham facilities. School bus driver
seniority is determined by location and is lost on transfer. No
school buses operate from the Portland facility where the ma-
jority of the paratransit drivers are located. Both classes of
drivers work out of Gresham and utilize the same employee
facilities, albeit at different times. Respondent has 10 or 11
employees trained to drive both paratransit and school buses,
but only 5 or 6 have paratransit uniforms. While the Re-
spondent plans to cross-train drivers, the program had not
begun at the time of the hearing.
The Board has long made it clear that it need not deter-
mine ‘‘the only appropriate unit, or the ultimate unit, or the
most appropriate unit: the Act requires only that the unit be
appropriate.’’2 In resolving the unit issue, the Board’s pri-
mary concern is to group together only employees who have
substantial mutual interests in wages, hours, and other condi-
tions of employment, i.e., whether the employees share a
community of interests. In making that determination, it uses
a number of tests, including (1) the extent and type of union
organization of the employees; (2) the bargaining history in
the industry as well as with respect to the parties involved;
(3) similarity of duties, skills, interests, and working condi-
tions of the employees; (4) the organizational structure of the
company; and (5) the desires of the employees. It is clear
from the record that the Union was the choice of the major-
ity of the SMS paratransit drivers and that their duties, skills,
interests, and working conditions have remained substantially
unchanged despite the fact that they do not all operate out
of the same facility as they did working for SMS. The condi-
tions of employment of the school bus drivers operating out
of the Gresham facility are sufficiently diverse from those of
the paratransit drivers to rebut a conclusion that a unit lim-
ited to all drivers operating out of the Gresham facility is the
only appropriate unit. Rather the similarity of duties, skills,
interests, and working conditions of the paratransit drivers
working under the Tri-Met contracts at the Respondent’s
Portland and Gresham locations, compels a finding that a
unit encompassing those two locations is appropriate as al-
leged in paragraph 6 of the complaint.
E. Refusal to Bargain
The complaint alleges that Respondent as the successor to
SMS violated Section 8(a)(5) of the Act by refusing to rec-
ognize the Union as the representative of its employees in
the unit which has been found to be appropriate. Aside from
its other claims which have been dealt with herein, the Re-
spondent has questioned the majority representative status of
the Union. Under Burns, 406 U.S. 272, a successor is re-
quired to bargain with the union representing the employees
of its predecessor only if a majority of the successor’s work
force is comprised of former employees of the predecessor.
In Burns, the Supreme Court indicated that a bargaining obli-
gation may arise even before actual hiring by the successor,
where, as here, the successor ‘‘plans to retain all of the em-
ployees in the unit.’’ In the instant case, Respondent was re-
quired by Tri-Met to hire its predecessor’s employees and in
fact hired the vast majority. Thus, under the principles set
out in Burns, Respondent lacked a valid basis for questioning
the Union’s majority status. In Burns the Supreme Court held
that the Board could properly require a successor employer
to bargain with an incumbent union, where despite the trans-
fer of business, the bargaining unit continues to be ‘‘an ap-
propriate one,’’ a majority of the successor’s employees has
been represented by the incumbent union, and the successor
‘‘could not reasonably have entertained a good faith doubt’’
that the union still represented a majority of the employees.
Accordingly, it is found that the Respondent violated Section
8(a)(5) of the Act in refusing to bargain with the Union after
the Union’s request for recognition following the institution
of the requirement that it hire its predecessor’s employees,
i.e., February 12, 1991.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce and the Union is
a labor organization within the meaning of the Act.
2. All employees of the Respondent working under the
Tri-Met contracts at the Respondent’s Gresham and Portland,
Oregon, locations; excluding office clerical employees, pro-
fessional employees, guards, and supervisors as defined in
the Act, constitute a unit appropriate for purposes of collec-
tive bargaining within the meaning of Section 9(a) of the
Act.
3. Amalgamated Transit Union, Division 757, AFL–CIO,
CLC, is the exclusive representative of all employees in the
aforesaid appropriate unit for the purposes of collective bar-
gaining within the meaning of Section 9(a) of the Act.
4. By refusing on and after February 12, 1991, and at all
times thereafter, to bargain collectively with the above-
named labor organization as the exclusive representative of
all its employees in the appropriate unit, Respondent has en-
gaged in and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning of Sec-
tion 8(a)(5) and (1) of the Act, I shall recommend that it
cease and desist therefrom, and, on request, bargain collec-
tively with the Union as the exclusive representative of all
employees in the appropriate unit.3
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended4
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
ORDER
The Respondent, School Bus Services, Inc., Portland and
Gresham, Oregon, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Refusing to bargain collectively concerning rates of
pay, wages, hours, and other terms and conditions of em-
ployment with Amalgamated Transit Union, Division 757,
AFL–CIO, CLC, as the exclusive bargaining representative
of its employees in the appropriate unit found above, by fail-
ing to recognize the Union as the majority representative of
such employees.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the rights guaranteed 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 the above-named labor orga-
nization as the exclusive representative of all employees in
the aforesaid appropriate unit, with respect to rates of pay,
wages, hours, and other terms and conditions of employment.
(b) Post at its facilities in Portland and Gresham, Oregon,
copies of the attached notice marked ‘‘Appendix.’’5 Copies
of the notice, on forms provided by the Regional Director for
Region 19, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately on receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to em-
ployees 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.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
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 the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT refuse to recognize and bargain collectively
with Amalgamated Transit Union, Division 757, AFL–CIO,
CLC as the exclusive bargaining representative of the em-
ployees in the following appropriate unit:
All employees of the Respondent working under the
Tri-Met contracts at its Portland and Gresham, Oregon
locations; excluding office clerical employees, profes-
sional employees, guards and supervisors as defined in
the Act.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of rights
guaranteed them by Section 7 of the Act.
WE WILL on request, bargain collectively with Amal-
gamated Transit, Division 757, AFL–CIO, CLC as the exclu-
sive bargaining representative of all employees in the appro-
priate unit as found above.
SCHOOL BUS SERVICES, INC.