STUDENT TRANSPORTATION OF AMERICA, INC.

National Labor Relations Board - Board Decisions

Aug 3, 2015

362 NLRB No. 156 (N.L.R.B. 2015)

362 NLRB No. 156
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.
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be included in the bound volumes.
Student Transportation of America, Inc. and Interna-
tional Brotherhood of Teamsters, Local 115, Pe-
titioner. Case 04–RC–113131
August 3, 2015
DECISION AND DIRECTION
BY MEMBERS HIROZAWA, JOHNSON, AND MCFERRAN
The National Labor Relations Board, by a three-
member panel, has considered the objections and deter-
minative ballots to an election held on November 14,
2013, and the judge’s report recommending disposition
of them. The election was conducted pursuant to a
Stipulated Election Agreement. The tally of ballots
shows 24 for and 23 against the Petitioner, with 11 chal-
lenged ballots, a sufficient number to affect the results.
The Board has reviewed the record in light of the ex-
ceptions and briefs and has, for the reasons set forth be-
low, adopted the judge’s findings1 and recommendations
only to the extent consistent with this Decision and Di-
rection.
We agree with the judge’s recommendation to overrule
the challenges to the ballots of Matthew Smith and Traci
Williams.2 We disagree, however, with his recommen-
dation to overrule the Petitioner’s Objection 8, in which
the Petitioner alleged that Vice President Timothy Krise
threatened that, if the Petitioner won, the Employer could
walk away from its contract with the Bristol Township
School District (Township). Contrary to the judge, we

1 The judge was sitting as a hearing officer in this representation
proceeding. The Petitioner has excepted to some of the hearing of-
ficer’s credibility findings. The Board’s established policy is not to
overrule a hearing officer’s credibility resolutions unless the clear pre-
ponderance of all the relevant evidence convinces us that they are in-
correct. Stretch-Tex Co., 118 NLRB 1359, 1361 (1957). We have
carefully examined the record and find no basis for reversing the find-
ings.
2 In the absence of exceptions, we adopt pro forma the judge’s rec-
ommendation that the Petitioner’s challenges to the ballots of John
Evans and Rebecca Kurtz be sustained. The Employer agreed at the
hearing that the other seven employees whose ballots were challenged
were not eligible to vote.
The Petitioner additionally filed 10 objections, but withdrew Objec-
tions 7 and 10 during the investigation. In the absence of exceptions,
we adopt pro forma the judge’s recommendation to overrule the Peti-
tioner’s Objections 3 and 4. Members Johnson and Hirozawa adopt the
judge’s recommendation to overrule the Petitioner’s Objections 1, 2,
and 5; Member McFerran finds it unnecessary to pass on these objec-
tions. Member McFerran also finds it unnecessary to pass on the Peti-
tioner’s Objections 6 and 9; Member Johnson would overrule these
objections; and Member Hirozawa would sustain Objection 6.
believe this objection has merit for the reasons stated
below.
The Employer provides transportation services to
school districts from facilities throughout the United
States. Pursuant to its contract with the Township, the
Employer manages all of the bus drivers for the Town-
ship, most of whom are directly employed by the Em-
ployer. The Petitioner seeks to represent a unit of “[a]ll
full-time and regular part-time drivers and mechanics
employed by the Employer at the [Township] facility.”
Vice President Krise was the Employer’s primary
spokesman at a series of voluntary meetings management
held with employees before the election. Approximately
20 to 30 employees attended each meeting. The judge
credited the uncontroverted testimony of driver Barbara
Hansell regarding Krise’s statements at the meetings.3
Hansell testified that, at two of the meetings, while dis-
cussing “what would happen if the Union got in,” Krise
stated that the Employer “had it written into [its] con-
tract” with the Township that the Employer “could walk
away” from the contract if operations “became too cost-
ly.”4 On cross-examination, Hansell indicated that Krise
also stated that he wanted the facility to succeed and
“wanted to be in for the long haul.” Both meetings oc-
curred slightly more than a month before the election.
Applying the standard set forth in NLRB v. Gissel
Packing Co., 395 U.S. 575 (1969), the judge found that
Krise’s statements regarding the Employer’s contract
with the Township were not objectionable.5 According
to the judge, Krise’s statements were similar to other
statements that the Board has found unobjectionable.6
The judge found that, although Krise “[stated] in effect
that if unionization resulted in too much in the way of
additional costs, STA could cancel its contract with the

3 The judge additionally drew an adverse inference from the Em-
ployer’s failure to call Krise as a witness.
4 Our dissenting colleague points out that Krise misstated the rele-
vant provision of the Employer’s contract with the Township, which
actually permitted the Township, not the Employer, to terminate the
agreement if it became too costly. Regardless, the Employer is respon-
sible for the actual, credited statements Krise made to employees. See
Labriola Baking Co., 361 NLRB No. 41, slip op. at 2 (2014).
5 The judge also relied on Sec. 8(c) of the Act as a basis for finding
Krise’s statements unobjectionable. We disagree with this reliance.
The Board has long held that Sec. 8(c) does not apply in representation
cases. E.g., Kalin Construction Co., 321 NLRB 649, 652 (1996), citing
Dal-Tex Optical, 137 NLRB 1782, 1787 fn. 11 (1962), and General
Shoe Corp., 77 NLRB 124, 127 fn. 10 (1948).
6 See Miller Industries Towing Equipment, Inc., 342 NLRB 1074,
1074–1075 (2004) (testimony about employer’s reference to a “possi-
bility of plant closures if there is a Union due to costing the Company
money” too vague to warrant overruling election); Enjo Architectural
Millwork, 340 NLRB 1340, 1340–1341 (2003) (statement that employ-
ees should “think twice” before supporting the union not a threat of
closure).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
Township,” Krise neither stated nor implied “that unioni-
zation would necessarily cause STA to walk away from
the contract and close the facility.” Further, he found
that Krise’s additional statements—that he wanted to be
in it for the long haul and that he wanted the facility to
succeed—mitigated any negative impact that his state-
ments about the Township contract may have had.
We disagree. “[A]n employer is free to communicate
to his employees any of his general views about union-
ism or any of his specific views about a particular union,
so long as the communications do not contain a ‘threat of
reprisal or force or promise of benefit.”’ NLRB v. Gissel
Packing Co., supra at 618. An employer may lawfully
communicate to his employees “carefully phrased” pre-
dictions based on “objective facts” as to “demonstrably
probable consequences beyond his control” that he be-
lieves unionization will have on his company. Id. How-
ever, if there is “any implication that an employer may or
may not take action solely on his own initiative for rea-
sons unrelated to economic necessities and known only
to him,” the statement is a threat of retaliation. Id.7 As
the Supreme Court has explained, we “must take into
account the economic dependence of the employees on
their employer[], and the necessary tendency of the for-
mer, because of that relationship, to pick up intended
implications of the latter that might be more readily dis-
missed by a more disinterested ear.” Id.
In evaluating party conduct during the critical period,
the Board applies an objective standard under which
conduct is found to be objectionable if it reasonably
tends to interfere with employee free choice. Cedars-
Sinai Medical Center, 342 NLRB 596, 597 (2004), citing
Cambridge Tool & Mfg. Co., 316 NLRB 716 (1995). As
to the objection at issue here, the Board has long consid-
ered “the threat of job loss through plant closure [to
have] a seriously coercive effect on employees’ freedom
of choice in the election of a collective-bargaining repre-
sentative.” Hedstrom Co., 235 NLRB 1193, 1195
(1978), enfd. 629 F.2d 305 (3d Cir. 1980) (en banc), cert.
denied 450 U.S. 996 (1981). In determining whether
election misconduct warrants setting aside the election
result, the Board considers (1) the number of incidents of
misconduct; (2) the severity of the incidents and whether
they were likely to cause fear among employees in the
bargaining unit; (3) the number of employees in the bar-
gaining unit subjected to the misconduct; (4) the prox-
imity of the misconduct to the election date; (5) the de-
gree of persistence of the misconduct in the minds of the
bargaining unit employees; (6) the extent of dissemina-
tion of the misconduct among bargaining unit employ-

7 See also Eagle Transport Corp., 327 NLRB 1210, 1211 (1999).
ees; (7) the effect, if any, of the misconduct by the op-
posing party to cancel out the effect of the original mis-
conduct; (8) the closeness of the final vote; and (9) the
degree to which the misconduct can be attributed to the
party. See Cedars-Sinai, supra; see also Lake Mary
Health & Rehabilitation, 345 NLRB 544, 545 (2005).
We find that employees could reasonably infer from
Krise’s statements that, if the Petitioner won the election,
the Employer’s costs necessarily would rise and cause
the Employer to walk away from its contract with the
Township, leaving the drivers out of work. Although
Krise did not directly threaten employees with job loss, a
threat need not be direct in order to be coercive. See
Portola Packaging, 361 NLRB No. 147 (2014);
Sunnyland Packing Co., 106 NLRB 457, 461 (1953)
(threats are no less coercive because expressed in veiled
or indirect terms), enfd. 211 F.2d 923 (5th Cir. 1954). In
this case, Krise implied to the employees that, in the
event of a Petitioner victory, the Employer might re-
spond by terminating the contract with the Township—
its only client—and thereby leave the drivers without
jobs.
This was not, as the judge and our dissenting colleague
have suggested, the sort of vague prognostication linking
job loss to potential rising costs that employees would be
unlikely to perceive as a threat. Rather, by making a
concrete reference to the Employer’s contractual prerog-
ative to sever its relationship with the Township, which
was the sole customer for the unit’s school bus driving
services and thus the ultimate provider of work for em-
ployees in the bargaining unit, Krise pointedly asserted
the Employer’s ability to deprive employees of their
jobs. Having been advised that the Employer possessed
a specific mechanism by which it could unilaterally ter-
minate the contract irrespective of the Township’s needs
or wishes, employees thus would have heard the threat-
ening subtext that the Employer might well decide to
exercise this prerogative in the event that the Petitioner
was voted in.
Although our dissenting colleague argues that there is
insufficient context in the record to infer a threat aimed
at unionization, we note that the judge found that Krise
made an explicit link between potential new costs due to
unionization and the Employer’s exercise of its right to
walk away from the Township contract: Krise “stated in
effect that if unionization resulted in too much in the way
of additional costs, [the Employer] could cancel its con-
tract with the Township.” Given that the record thus
establishes, with reasonable precision, the content of
Krise’s statement, which we conclude constitutes a threat
standing alone, we do not believe further context is nec-
essary here to make out objectionable conduct.
STUDENT TRANSPORTATION OF AMERICA, INC. 3
Significantly, although an implication of job loss
might not be deemed a threat if framed as a factually
based prediction of circumstances beyond an employer’s
control, Krise’s statements were not based on objective
facts. The Employer points to no contractual language
permitting the Employer to unilaterally walk away if
costs get too high. See Daikichi Corp., 335 NLRB 622,
623–624 (2001) (in an unfair labor practices case, find-
ing unlawful the statement that company might be unable
to continue part of its operations in the event of unioniza-
tion because the company would lose its ability to com-
pete successfully if all the demands of the union were
met, but where there was no evidence that union had
made any demands). Nor was there evidence that union-
ization of this workplace would lead to significant new
costs. In fact, under the terms of the contract, the parties
agreed that the Township would offset 50 percent of the
Employer’s actual additional labor costs resulting from a
unionization drive or a new collective-bargaining agree-
ment. Given that Krise’s statement about the contract
was inaccurate, and that the contract in fact provided for
additional support from the Township in the event of
unionization, there was no objective basis for his veiled
threat that the Employer could abandon its contract with
the Township due to rising costs that he implicitly asso-
ciated with union victory in the election. Krise’s state-
ments, therefore, lacked an objective basis and did not
predict demonstrably probable consequences beyond the
Employer’s control.8
Further, the circumstances surrounding the threat
would tend to accentuate rather than mitigate its coercive
effects. Krise, a vice president at the Employer, was a
high-ranking official, and, as such, his comments would
have carried extra weight. He made these comments at a
companywide (albeit voluntary) meeting, and thus the
dissemination of the statements was widespread (i.e., 20–
30 employees, likely close to half of the 64-person voting
unit). Finally, he made the threat at least twice during
the critical period, and the very close election results
(i.e., a one-vote margin) further weigh in favor of over-
turning the election.9 We disagree with the judge and our
dissenting colleague that Krise’s statements that he was

8 Moreover, the cases on which the judge relied in reaching a differ-
ent result—Enjo and Miller—are distinguishable, as the employers in
those cases did not make false or inaccurate representations to support
their statements, as Krise did here. Further, as stated above, the threat
here was not the same as raising a generic, self-evident possibility that
if costs go up, there might be some sort of negative consequences.
Krise specifically invoked the Employer’s ability to terminate its
Township contract, which was the sole source of the unit’s work.
9 The Board gives significant weight to the closeness of an election
in deciding whether misconduct warrants setting the election aside.
Hopkins Nursing Care Center, 309 NLRB 958, 959 (1992).
in it for the long haul mitigated the effect of his state-
ments, as they could have just as easily been interpreted
as implying that the Employer’s desire to remain in oper-
ation might be thwarted if the Petitioner were voted in.
In sum, where, as here, the threat involves one of the
most fundamental aspects of employment conditions—
i.e., job security—a single, widely disseminated threat
can be sufficient to overturn election results in a very
close election. See Center Service System Division, 349
NLRB 729, 745 (2005) (“The threat of job loss is one of
the most flagrant examples of interference with Section 7
rights.”). We find that Krise’s veiled threat of job loss if
employees voted in favor of the Petitioner reasonably
tended to interfere with employee free choice in this elec-
tion.
Accordingly, we remand the case to the Regional Di-
rector to open and count the ballots of Matthew Smith
and Traci Williams, within 14 days from the date of this
Decision and Direction, and issue a revised tally. If the
revised tally of ballots shows that the Petitioner received
a majority of the eligible votes, the Regional Director
shall issue a certification of representative. Alternative-
ly, if the revised tally shows that the Petitioner has not
prevailed in the election, the election shall be set aside
and a second election shall be directed.
DIRECTION
IT IS DIRECTED that the case is remanded to the Re-
gional Director for Region 4 for further appropriate ac-
tion consistent with this Decision and Direction.
Dated, Washington, D.C. August 3, 2015
______________________________________
Kent Y. Hirozawa, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER JOHNSON, dissenting.
I would adopt the judge’s recommendation to overrule
Petitioner’s remaining ballot challenges and objections. I
dissent from the majority’s reversal of the judge’s over-
ruling of Objection 8, which alleges that the Employer
engaged in objectionable conduct when, more than 1
month before the election, Vice President Timothy Krise
mentioned that the Employer “had it written into [its]
contract” with the Township that the Employer “could
walk away” from the contract if operations “became too
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
costly.” Unlike the majority, I do not believe this state-
ment constitutes a threat of retaliation if the employees
voted in favor of the Union.
Krise either misstated a provision of the Employer’s
contract with the Township or was misunderstood by the
witness, Hansell, who testified that he said that it was the
Employer (rather than the Township) that could walk
away from the contract. Although the contract does not
expressly permit the Employer to unilaterally walk away
if costs become too high, it does contain a provision
permitting the Township to do so. Article XIII—
termination provision, section (a) of the contract provides
that the Township may terminate the contract if it “de-
termines, in its reasonable discretion, that it lacks ade-
quate funds to pay” for the services under the contract.
Thus, while Krise may have misspoken, I disagree with
my colleagues’ attenuated inferences that he implicitly
threatened to walk away from the contract and cause
employees to lose their jobs.
Additionally, no testimony establishes the specific
context in which Krise made the statement—that is, what
the specific nature of the discussion was at the time of
his statement or that Krise actually connected rising costs
to unionization. I would not infer such a connection, nor
infer that the subtext of his comment was a retaliatory
threat to abandon the contract if the Union came in, giv-
en the lack of more specific testimony about what else
was said or the immediate context in which it was said.
Furthermore, as the majority concedes, Krise never
mentioned laying off employees or closing the facility.
In fact, to the extent Krise mentioned any future action,
he told employees that he was in it “for the long haul”
and that he wanted the facility to succeed. As the judge
found, these comments would have mitigated any nega-
tive implication his statement referencing the contract
may have had. Indeed, it is difficult to see how employ-
ees reasonably would have understood Krise as implicit-
ly threatening them with job loss when he expressly told
them that he intended to remain “for the long haul.”
Krise’s vague, abbreviated comment—which merely
misstated a provision of the Employer’s contract with the
Township and does not mention unionization, layoffs, or
closure—is insufficient to constitute a threat of reprisal if
the employees voted for the Union. Contrary to my col-
leagues, Miller Industries Towing Equipment, Inc., 342
NLRB 1074, 1074–1075 (2004) (manager’s statement
regarding the possibility of “a layoff, if the Union came
in, and [that the company] really couldn’t afford it” too
vague to constitute a threat) is indistinguishable. See
also Ohio New & Rebuilt Parts, Inc., 267 NLRB 420,
421 (1983) (owner’s statement that he could not afford to
increase wages and might “lose a lot of business” if
forced to, with no direct link to unionization, too vague
to support finding that he threatened to close plant if em-
ployees selected union to represent them), enfd. on other
grounds 760 F.2d 1443 (6th Cir. 1985), cert. denied 760
F.2d 1443 (1985).
Accordingly, I would adopt the judge’s recommenda-
tion to overrule Petitioner’s Objection 8 along with the
other objections and issue an appropriate certification
after the remaining challenged ballots are counted.
Dated, Washington, D.C. August 3, 2015
______________________________________
Harry I. Johnson, III, Member
NATIONAL LABOR RELATIONS BOARD