Gross School Bus Service, Inc - Decision Summary

Gross School Bus Service, Inc., 4-CA-37768 (reported at 356 NLRB No. 81) (3d Cir. decided November3, 2011)

In an unpublished opinion, the Court enforced a Board Decision and Order finding that the employer violated Section 8(a)(5) and (1) of the Act by failing and refusing to bargain with the duly certified collective-bargaining representative of its bus drivers and bus aides. The Court agreed with the Board that Gross’s admitted refusal to bargain was unlawful, as Gross was not relieved of its duty to bargain with the certified union based on alleged misconduct by employees on an in-house organizing committee (“IHOC”) at the underlying representation election.

The Court specifically upheld the Board’s finding, in the representation proceeding, that members of the IHOC did not engage in impermissible electioneering in the voting line on election day.Applying the test of agency status announced inNLRB v. L & J Equip. Co., 745 F.2d 224, 234 (3d Cir. 1984), the Court affirmed the Board’s finding that IHOC members who conversed with fellow employees in the voting line were not acting as union agents at the time, as “the Union representative never gave them instructions about how to behave or what to say while in line to vote, and the topics of conversation were mostly unrelated to the election.”The Court accordingly analyzed the credited evidence as to the IHOC members’ voting-line conversations under the standard applicable to electioneering by third parties in a representation election and found, in agreement with the Board, that those conversations were not objectionable under the third-party standard.Although one voting-line comment made by an IHOC member named Garner was related to the election, the Court found, again in agreement with the Board, that this comment would be insufficient to void the election, even it were assumed that Garner was speaking as an agent of the Union and therefore subject to the Board’sMilchemrule, which prohibits prolonged conversations between parties to an election and employees waiting to vote.See Milchem, Inc., 170 NLRB 362,363(1968).

The Court also upheld the Board’s finding that a gathering of IHOC members at some distance away from the voting line did not constitute objectionable electioneering, particularly where the credited evidence failed to show that pro-union comments emanated from the group, “no one complained about the gathering of people to the Board agent conducting the election,” and “the group immediately dispersed” when told to do so.