Student Transportation of America

National Labor Relations Board - Board Decisions

Apr 20, 2018

366 NLRB No. 61 (N.L.R.B. 2018)

366 NLRB No. 61
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.
Student Transportation of America, Inc. and Interna-
tional Brotherhood of Teamsters, Local Union
No. 512. Case 12–CA–181426
April 20, 2018
DECISION AND ORDER
BY MEMBERS PEARCE, KAPLAN, AND EMANUEL
The General Counsel seeks a default judgment in this
case pursuant to the terms of an informal settlement
agreement. Upon the filing of a charge by International
Brotherhood of Teamsters, Local Union No. 512 (the
Union) on August 3, 2016, the Regional Director for
Region 12 issued a complaint on November 30, 2016,
against Student Transportation of America, Inc. (the Re-
spondent), alleging that the Respondent violated Section
8(a)(5) and (1) of the Act. The Respondent filed an an-
swer to the complaint on December 13, 2016.
Subsequently, the parties entered into a bilateral in-
formal settlement agreement (the Agreement), which was
approved by the Acting Regional Director on May 5,
2017. Among other things, the Agreement required the
Respondent to post a Notice to Employees in its terminal
located in Jacksonville, Florida, and to comply with all
provisions in the Notice. The Notice required that the
Respondent cease and desist from (1) doing anything to
prevent employees from exercising the rights guaranteed
them under federal law, including the right to form, join,
or assist a union, to choose a representative to bargain
with the Respondent on the employees’ behalf, to act
together with other employees for the employees’ benefit
and protection, and to choose not to engage in any of
these protected activities; (2) creating new bargaining-
unit positions without the Union’s consent; (3) establish-
ing wage rates for new bargaining-unit positions during
the term of its collective-bargaining agreement with the
Union without the Union’s consent, or during a time
when there is no collective-bargaining agreement in ef-
fect without first bargaining to a valid impasse in negoti-
ations for a new collective-bargaining agreement; and (4)
in any like or related manner interfering with employees’
exercise of their rights under Section 7 of the Act. The
Notice further required that the Respondent rescind its
bus washer position, restore all bus washers to their for-
mer positions, and bargain in good faith with the Union
with respect to the wages, hours, and other terms and
conditions of employment of the employees in the bar-
gaining unit. Finally, the Agreement required the Re-
spondent to notify the Regional Director in writing of
what steps it had taken to comply with the Agreement.
The Agreement also contained the following provi-
sion:
Performance by the Charged Party with the terms and
provisions of this Agreement shall commence immedi-
ately after the Agreement is approved by the Regional
Director, or if the Charging Party does not enter into
this Agreement, performance shall commence immedi-
ately upon receipt by the Charged Party of notice that
no review has been requested or that the General Coun-
sel has sustained the Regional Director. The Charged
Party agrees that in case of non-compliance with any of
the terms of this Settlement Agreement by the Charged
Party, and after 14 days notice from the Regional Di-
rector of the National Labor Relations Board of such
non-compliance without remedy by the Charged Party,
the Regional Director will reissue the complaint previ-
ously issued on November 30, 2016, in the instant
case(s). Thereafter, the General Counsel may file a Mo-
tion for Default Judgment with the Board on the allega-
tions of the Complaint. The Charged Party understands
and agrees that all of the allegations of the Complaint
will be deemed admitted and its Answer to such Com-
plaint will be considered withdrawn. The only issue
that the Charged Party may raise before the Board will
be whether it defaulted on the terms of this Settlement
Agreement. The General Counsel may seek, and the
Board may impose, a full remedy for each unfair labor
practice identified in the Notice to Employees. The
Board may then, without necessity of trial or any other
proceeding, find all allegations of the Complaint to be
true and make findings of fact and conclusions of law
consistent with those allegations adverse to the
Charged Party on all issues raised by the pleadings. The
Board may then issue an Order providing a full remedy
for the violations found as is appropriate to remedy
such violations. The parties further agree that a U.S.
Court of Appeals Judgment may be entered enforcing
the Board Order ex parte, after service or attempted
service upon Charged Party at the last address provided
to the General Counsel.
On May 17, 2017, Region 12’s compliance assistant
sent the Respondent’s counsel a letter enclosing the
Agreement, copies of the Notice to Employees to be
signed, dated and posted, and Certification of Compli-
ance forms. The letter detailed the Respondent’s obliga-
tions under the Agreement and stated that the Respond-
ent was required to notify Region 12 in writing by no
later than May 31, 2017, about the steps it had taken to
comply with the terms of the Agreement.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
By email dated June 15, 2017, the compliance assistant
notified the Respondent’s counsel that in order to avoid a
finding of noncompliance, the Respondent had to submit
two completed certification of compliance forms and
signed and dated original Notices by no later than June
21, 2017. On July 19, 2017, the compliance assistant
sent another email to the Respondent’s counsel, confirm-
ing a telephone conversation in which the Respondent’s
counsel had represented that the Respondent would pro-
vide proof of compliance by the following day.
On August 29, 2017, the compliance assistant sent an-
other email stating that the Region might take further
action if the requested documents were not received by
the Region by September 5, 2017. On August 30, 2017,
the Respondent’s counsel replied to the August 29 email,
stating he was in the process of ensuring that the docu-
ments would be sent to the Region “this week.” On Oc-
tober 12, 2017, the compliance assistant sent another
email to the Respondent’s counsel, advising that the Re-
gion still had not received the requested documents, and
giving the Respondent a new deadline of October 17,
2017.
On October 19, 2017, the Region emailed a letter to
the Respondent’s counsel, notifying the Respondent that
it was in noncompliance with the Agreement because it
had failed to send the signed and dated Notices or the
completed certification of compliance forms. The letter
further stated that if the Respondent did not fully comply
with the Agreement by November 3, 2017, the Regional
Director intended to reissue the November 30, 2016
complaint. The Respondent did not reply to the email.
Accordingly, on November 14, 2017, the Regional Di-
rector, on behalf of the General Counsel, reissued the
complaint, titled Complaint Based on Breach of Affirma-
tive Provisions of Settlement Agreement. On November
28, 2017, the General Counsel filed a Motion for Default
Judgment and Issuance of Decision and Order on the
ground that the Respondent had failed to comply with the
terms of the Agreement. On November 30, 2017, the
Board issued an Order Transferring Proceeding to the
Board and a Notice to Show Cause why the General
Counsel’s motion should not be granted, with a required
response date of on or before December 14, 2017. The
Respondent failed to file a timely response. The allega-
tions in the motion are therefore undisputed.
Ruling on Motion for Default Judgment
According to the uncontroverted allegations in the mo-
tion for default judgment, the Respondent has failed to
comply with the terms of the Agreement because it has
not provided the Region with proof of compliance, in-
cluding that it posted the Notice to Employees at its
Jacksonville, Florida terminal and complied with all pro-
visions in the Notice.
Consequently, pursuant to the noncompliance provi-
sions of the Agreement set forth above, we find that all
the allegations in the Complaint Based on Breach of Af-
firmative Provisions of Settlement Agreement are true.1
Accordingly, we grant the General Counsel’s Motion for
Default Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a Delaware cor-
poration, with an office and place of business in Wall,
New Jersey, and with other offices and places of business
including in Jacksonville, Florida, has been engaged in
the business of providing school bus transportation ser-
vices. During the 12-month period preceding issuance of
the complaint, the Respondent, in conducting its business
operations described above, derived gross revenues in
excess of $250,000, and purchased and received at its
facility in Jacksonville, Florida, goods valued in excess
of $50,000 directly from points outside the State of Flor-
ida.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act, and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times, the following individuals held
the positions set forth opposite their respective names
and have been supervisors of the Respondent within the
meaning of Section 2(11) of the Act and agents of the
Respondent within the meaning of Section 2(13) of the
Act:
Michael Kennedy Senior Vice President
Daniel Middleton Regional Maintenance Manager
John Miller Human Resources Director
Debby Murphy Terminal Manager
The following employees of the Respondent constitute
a unit appropriate for the purposes of collective bargain-
ing within the meaning of Section 9(b) of the Act (the
Unit):
All full time and regular part time drivers, mechanics
(also referred to as "technicians" herein), aides, attend-
ants, and lot workers employed by the Employer in
Duval County Florida; excluding all office clerical em-
ployees, lead technicians, technicians in charge, profes-

1 See U-Bee, Ltd., 315 NLRB 667 (1994).
STUDENT TRANSPORTATION OF AMERICA, INC. 3
sional employees, managerial employees, guards and
supervisors as defined in the National Labor Relations
Act.
Since about July 1, 2014, and at all material times, the
Respondent has recognized the Union as the exclusive
collective-bargaining representative of the Unit. This
recognition has been embodied in a collective-bargaining
agreement, which is effective by its terms from July 1,
2014, through June 30, 2019. At all times since or on
about July 1, 2014, based on Section 9(a) of the Act, the
Union has been the exclusive collective-bargaining rep-
resentative of the Unit.
About February 18, 2016, during the term of its collec-
tive-bargaining agreement with the Union, the Respond-
ent created a bus washer position covering work that was
already being performed by unit employees and estab-
lished a wage rate for the bus washer position. The Re-
spondent engaged in this conduct without the Union’s
consent.
CONCLUSION OF LAW
By the conduct described above, the Respondent has
been failing and refusing to bargain collectively and in
good faith with the exclusive collective-bargaining repre-
sentative of its unit employees in violation of Section
8(a)(5) and (1) of the Act. The Respondent’s unfair la-
bor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act. Specifically, having
found that the Respondent violated Section 8(a)(5) and
(1) of the Act by creating a bus washer position covering
work that was already being performed by unit employ-
ees, we shall order the Respondent to cease and desist
from creating new bargaining-unit positions without the
Union’s consent, to rescind the bus washer position, and
to restore all bus washers to their former positions. Hav-
ing found that the Respondent violated Section 8(a)(5)
and (1) of the Act by establishing a wage rate for the bus
washer position, we shall order the Respondent to cease
and desist from establishing new wage rates during the
term of its collective-bargaining agreement with the Un-
ion without the Union’s consent, or during a time when
there is no collective-bargaining agreement in effect
without first bargaining to a valid impasse in negotiations
for a new collective-bargaining agreement.
ORDER
The National Labor Relations Board orders that the
Respondent, Student Transportation of America, Inc.,
Jacksonville, Florida, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Creating new bargaining-unit positions without the
Union’s consent. The unit is:
All full time and regular part time drivers, mechanics
(also referred to as "technicians" herein), aides, attend-
ants, and lot workers employed by the Employer in
Duval County Florida; excluding all office clerical em-
ployees, lead technicians, technicians in charge, profes-
sional employees, managerial employees, guards and
supervisors as defined in the National Labor Relations
Act.
(b) Establishing new wage rates during the term of its
collective-bargaining agreement with the Union without
the Union’s consent, or during a time when there is no
collective-bargaining agreement in effect without first
bargaining to a valid impasse in negotiations for a new
collective-bargaining agreement.
(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) Rescind the bus washer position and restore all bus
washers to their former positions.
(b) Within 14 days after service by the Region, post at
its facility in Jacksonville, Florida, copies of the attached
notice marked “Appendix.”2 Copies of the notice, on
forms provided by the Regional Director for Region 12,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily 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 custom-
arily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone

2 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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
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 current em-
ployees and former employees employed by the Re-
spondent at any time since February 18, 2016.
(c) Within 21 days after service by the Region, file
with the Regional Director for Region 12 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. April 20, 2018
______________________________________
Mark Gaston Pearce, Member
______________________________________
Marvin E. Kaplan, Member
______________________________________
William J. Emanuel, Member
(SEAL) 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
violated 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 create new bargaining-unit positions
without the consent of International Brotherhood of
Teamsters, Local Union No. 512 (the Union). The unit
is:
All full time and regular part time drivers, mechanics
(also referred to as "technicians" herein), aides, attend-
ants, and lot workers employed by the Employer in
Duval County Florida; excluding all office clerical em-
ployees, lead technicians, technicians in charge, profes-
sional employees, managerial employees, guards and
supervisors as defined in the National Labor Relations
Act.
WE WILL NOT establish new wage rates during the term
of our collective-bargaining agreement with the Union
without the Union’s consent, or during a time when there
is no collective-bargaining agreement in effect without
first bargaining to a valid impasse in negotiations for a
new collective-bargaining agreement.
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 rescind the bus washer position and restore
all bus washers to their former positions.
STUDENT TRANSPORTATION OF AMERICA, INC.
The Board’s decision can be found at
www.nlrb.gov/case/12-CA-181426 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington,
D.C. 20570, or by calling (202) 273-1940.