Dean Transp., Inc. v. N.L.R.B., 07-1262.
| Decision Date | 09 January 2009 |
| Docket Number | No. 07-1314.,No. 07-1262.,No. 07-1313.,07-1262.,07-1313.,07-1314. |
| Citation | 551 F.3d 1055 |
| Parties | DEAN TRANSPORTATION, INC., Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent. Grand Rapids Educational Support Personnel Association, MEA/NEA, Intervenor. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
David E. Khorey argued the cause for petitioner. With him on the briefs was Kurt M. Graham.
Michael L. Fayette filed the brief on behalf of Dean Transportation Employees Union, incorporating by reference the brief of petitioner Dean Transportation, Inc.
Thomas Goldstein and Patrick J. Wright were on the brief for amici curiae Kent Intermediate School District, et al. in support of petitioner.
Heather S. Beard, Attorney, National Labor Relations Board, argued the cause for respondent. With her on the brief were Ronald E. Meisburg, General Counsel, John H. Ferguson, Associate General Counsel, Linda Dreeben, Deputy Associate General Counsel, and Meredith L. Jason, Supervisory Attorney.
Fillipe Iorio argued the cause and filed the brief for intervenor Grand Rapids Educational Support Personnel Association.
Before: HENDERSON and GARLAND, Circuit Judges, and RANDOLPH, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge GARLAND.
When petitioner Dean Transportation, Inc. took over operations at a facility that provided bus transportation for the Grand Rapids Public Schools (GRPS), it refused to recognize and bargain with the Grand Rapids Educational Support Personnel Association (GRESPA), the union that had been representing employees at the facility. Instead, Dean recognized the union that represented bus drivers at Dean's seven other facilities, the Dean Transportation Employees Union (DTEU). The National Labor Relations Board determined that, in so doing, Dean and DTEU violated the National Labor Relations Act. The Board's determination was based on the following findings: Dean was a successor to GRPS as the employer of bus drivers, mechanics, and route planners at the facility it acquired by lease from GRPS; a unit consisting of those employees was an appropriate bargaining unit; the bus drivers in the unit were not accreted to DTEU's bargaining unit; and GRESPA had made a proper demand for recognition and bargaining. We deny the company's petition for review and grant in full the Board's applications for enforcement of its order.
The Grand Rapids Public Schools (GRPS) is a large, urban school district in Michigan serving more than 22,000 students in approximately 100 schools. In 1993, the Michigan Employment Relations Commission (MERC) certified the Grand Rapids Educational Support Personnel Association (GRESPA) as the exclusive collective bargaining representative of a district-wide unit of GRPS employees. The unit included most employees of GRPS' transportation department — including all bus drivers, route planners, and mechanics, but not including five dispatchers and one payroll clerk. The transportation department was located at a single facility at 900 Union Street in the city of Grand Rapids. GRESPA also represented other non-teaching, non-clerical GRPS employees in the same unit. During the 2004-05 school year, GRPS employed more than 4000 people, of whom 536 were in the GRESPA bargaining unit. Approximately 168 of those employees worked at the Union Street facility.
The bus drivers in the GRESPA unit provided transportation for general and special education students. Those drivers transporting special education students, approximately 97 of the unit employees, were jointly employed by GRPS and the Kent Intermediate School District (KISD) pursuant to a July 2002 agreement between the two districts. KISD is a countywide school district that provides educational services to students with special needs.
In April 2005, the GRPS Board of Education approved a resolution to outsource all of its student transportation services to Dean Transportation, Inc., which employed drivers working out of seven different locations to provide transportation services for several school districts in the state. Thereafter, Dean signed a contract with GRPS for transportation of its students and a second contract with KISD for transportation of GRPS' special needs students. Under those contracts, Dean agreed to use its best efforts to maintain existing bus routes within GRPS for the first year and to offer incentives to current GRPS drivers to encourage them to apply for jobs with Dean. "The goal of the parties' agreement was for [Dean] to maintain continuity in the transportation services it provided to GRPS students." Dean Transp., Inc., 350 N.L.R.B. No. 4, at 5 (June 21, 2007) (ALJ Op.). The contracts also required Dean to use GRPS' existing route planning software and to adhere to GRPS administration directives, and they gave the GRPS superintendent the right of final approval for any route changes. These provisions and others required Dean to treat its transportation services for GRPS differently from the services it provided to other school districts with respect to route planning, driving, maintenance, and employee compensation.
GRPS and KISD permanently laid off their transportation department employees on June 9, 2005, and Dean began transporting both general and special education students in Grand Rapids on June 10. As part of its arrangements with GRPS and KISD, Dean leased GRPS' Union Street facility and purchased the school buses that GRPS and KISD had used to transport students. The company continued to use the Union Street facility to provide transportation services for GRPS, including the maintenance and repair of buses, route planning, and dispatch operations. By the start of the school year in September, a majority of Dean's employees at Union Street had formerly been employed by GRPS in the same capacity, including 100 of 137 drivers, 4 of 5 mechanics, and 2 of 3 route planners. All of these former employees had been represented by GRESPA when GRPS operated the Union Street facility. In addition, GRPS' Transportation Director continued in the same position for Dean, as did one of two GRPS supervisors. Dean also hired seven dispatchers to work at the Union Street facility: six had previously worked for GRPS as bus drivers and the seventh as a payroll clerk at the same facility.
Since 1976, Dean had recognized the Dean Transportation Employees Union (DTEU), which was certified by MERC, to represent the company's drivers. Beginning June 10, 2005, the company recognized DTEU as the exclusive collective bargaining agent of the bus drivers employed at Union Street, and DTEU accepted that recognition. Dean applied its existing bargaining agreement with DTEU to the Union Street drivers and deducted DTEU dues from their salaries. The company did not recognize any union with respect to the route planners, dispatchers, and mechanics.
On September 1, 2005, GRESPA sent Dean a letter stating that it was "the recognized exclusive collective bargaining representative of the employees performing transportation services for [GRPS] students that have been hired by Dean Transportation." J.A. 597. GRESPA asked the company to recognize and bargain with it as "the exclusive representative of the unit employees, including the full and part time bus drivers, dispatchers, mechanics, [and] route planners." Id. On September 15, the company refused to grant recognition, disputing GRESPA's claim to represent the employees.
In response, GRESPA filed unfair labor practice charges against Dean and DTEU with the National Labor Relations Board (NLRB), and, on December 28, the General Counsel issued a complaint. Thereafter, an Administrative Law Judge (ALJ) found that: (1) Dean was a successor to GRPS as the employer of a unit of employees at the Union Street facility composed of bus drivers, mechanics, and route planners; (2) the unit was an appropriate bargaining unit; (3) the bus drivers in the unit were not accreted to the existing DTEU bargaining unit; and (4) GRESPA had made an appropriate demand for recognition and bargaining. In light of these findings, the ALJ concluded that Dean violated sections 8(a)(5) and (1) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(5) & (1), by failing to recognize and refusing to bargain with GRESPA, and that it violated sections 8(a)(1), (2), and (3), 29 U.S.C. §§ 158(a)(1), (2), & (3), by recognizing DTEU as the representative of the bus drivers in the unit and imposing the terms of its collective bargaining agreement with DTEU. The ALJ also determined that DTEU violated sections 8(b)(1)(A) and (2), 29 U.S.C. §§ 158(b)(1)(A) & (2), by accepting that recognition and applying the terms of its collective bargaining agreement. Dean, 305 N.L.R.B. No. 4, at 13-14 (ALJ Op.). The Board affirmed the ALJ's findings and reasoning and adopted the ALJ's recommended order.
Dean now petitions for review, and the Board cross-petitions for enforcement. In Part II we consider the Board's finding that Dean was a successor employer, and in Part III we consider Dean's claim that the employees at the Union Street facility do not constitute an appropriate bargaining unit. In Part IV we address the accretion issue, and in Part V we consider Dean's contention that GRESPA's demand for recognition was inappropriate and hence ineffective.
We assess the NLRB's decision under familiar standards: "We review the Board's factual conclusions for substantial evidence, defer to NLRB rules if they are rational and consistent with the Act, and uphold the Board's application of law to facts unless arbitrary or otherwise erroneous." Harter Tomato Prods. Co. v. NLRB, 133 F.3d 934, 937 (D.C.Cir.1998) (quotation marks and citations omitted).
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