Dean Transportation, Inc. v. National Labor Relations Board , 551 F.3d 1055 ( 2009 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 3, 2008 Decided January 9, 2009
No. 07-1262
DEAN TRANSPORTATION, INC.,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
GRAND RAPIDS EDUCATIONAL SUPPORT PERSONNEL
ASSOCIATION, MEA/NEA,
INTERVENOR
Consolidated with 07-1313, 07-1314
On Petition for Review, Cross-Application for Enforcement,
and Application for Enforcement
of an Order of the National Labor Relations Board
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.
2
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.
GARLAND, Circuit Judge: 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
3
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.
I
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.
4
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,
5
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
6
(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.
7
Co. v. NLRB, 133 F.3d 934, 937 (D.C. Cir. 1998) (quotation
marks and citations omitted).
II
A “new employer has an obligation to bargain with” the
union representing its predecessor’s employees if, inter alia, “the
new employer is in fact a successor of the old employer and the
majority of its employees were employed by its predecessor.”
Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 41
(1987); see Harter Tomato, 133 F.3d at 937. It is undisputed
that a majority of Dean’s employees at Union Street were
formerly 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 were represented by GRESPA
when GRPS operated the Union Street facility. Dean contends,
however, that it is not in fact a successor employer.
A new employer qualifies as a successor to its predecessor
if there is “substantial continuity” between the enterprises. Fall
River, 482 U.S. at 43. The determination of substantial
continuity “is based upon the totality of the circumstances of a
given situation, [and] requires that the Board focus on whether
the new company has ‘acquired substantial assets of its
predecessor and continued, without interruption or substantial
change, the predecessor’s business operations.’” Id. (quoting
Golden State Bottling Co., Inc. v. NLRB, 414 U.S. 168, 184
(1973)); see Pennsylvania Transformer Tech., Inc. v. NLRB, 254
F.3d 217, 222 (D.C. Cir. 2001); CitiSteel USA, Inc. v. NLRB, 53
F.3d 350, 353 (D.C. Cir. 1995). In Fall River, the Supreme
Court identified the following factors as relevant to the
determination of substantial continuity:
[W]hether the business of both employers is essentially
the same; whether the employees of the new company
8
are doing the same jobs in the same working conditions
under the same supervisors; and whether the new entity
has the same production process, produces the same
products, and basically has the same body of
customers.
Fall River, 482 U.S. at 43. These factors are assessed from “the
employees’ perspective,” and the court asks “whether ‘those
employees who have been retained will understandably view
their job situations as essentially unaltered.’” Id. (quoting
Golden State Bottling Co., 414 U.S. at 184); see Harter Tomato,
133 F.3d at 937.
There is no dispute that Dean acquired substantial
transportation assets from GRPS -- namely, all of GRPS’ buses
and the Union Street physical facilities -- and that it continued,
without interruption, GRPS’ transportation operations. The ALJ
found that, “when viewed from the perspective of the
employees, there has been very little change in their working
conditions.” Dean, 350 N.L.R.B. No. 4, at 11 (ALJ Op.). As
the ALJ explained:
The bus drivers continue to report to the same location,
drive the same buses, transport the same group of
students to essentially the same schools. They report
to the same supervisors . . . that they did when they
worked for GRPS and KISD. . . . The route planners
. . . continue to work in the same office, doing the same
jobs, using the same computer software, and reporting
to the same supervisor . . . . The mechanics, likewise,
work in the same garage, with the same equipment and
tools, repairing and maintaining the same buses.
Id. Substantial evidence supports all of these findings, and Dean
does not seriously contest them. Instead, the company focuses
9
on several factors that it contends should count against a finding
of substantial continuity.
First, Dean argues that it “implemented a number of
significant changes” when it took over operations at Union
Street, “including changes with respect to wages and benefits,
supervision, work rules, policies, training programs,”
paperwork, and the method for assigning routes. Petitioner’s Br.
26-27. The ALJ acknowledged these operational changes. See
Dean, 350 N.L.R.B. No. 4, at 8 (ALJ Op.). But as we have
noted before, “[p]ointing to differences in size, wages, benefits,
training, customer base, [and] managerial philosophy, . . .
among others, . . . is unresponsive to the question we face. We
ask not whether [the petitioner’s] view of the facts supports its
version of what happened, but rather whether the Board’s
interpretation of the facts is reasonably defensible.”
Pennsylvania Transformer, 254 F.3d at 224 (quoting Harter
Tomato, 133 F.3d at 938) (internal quotation marks omitted).
“If so, the case is over, even if [the petitioner’s] version might
support a contrary result.” Harter Tomato, 133 F.3d at 938.
We have several times upheld a successorship
determination by the Board even when factors like those
highlighted by Dean were present. See, e.g., Community Hosps.
of Cent. Cal. v. NLRB, 335 F.3d 1079, 1084 (D.C. Cir. 2003);
Pennsylvania Transformer, 254 F.3d at 224-25; Harter Tomato,
133 F.3d at 938; United Food & Commercial Workers Int’l
Union, AFL-CIO, Local 152 v. NLRB, 768 F.2d 1463, 1473-74
(D.C. Cir. 1985). In Pennsylvania Transformer, for example,
we found substantial continuity notwithstanding “differences in
size, facilities, work force, managerial philosophy, [and]
customer base,” in part because “the business of both employers
[was] essentially the same” and employees continued to “use the
same skills and expertise.” Pennsylvania Transformer, 254 F.3d
at 223, 224. We reached a similar conclusion in Community
10
Hospitals. Despite the successor’s “new supervisory and
management structure; changes in the duties, compensation, and
benefits of the nurses at the hospital; [and] changes in the
nurses’ shift schedules and in the organization of support
functions,” we nonetheless ruled that the Board had “reasonably
found that the nurses at [the hospital] continued to do the same
jobs, in the same location, using the same equipment, and
treating the same patients as they had before the acquisition.”
Community Hosps., 335 F.3d at 1083.
Moreover, the Board’s finding of substantial continuity here
is directly in line with its decision in Van Lear Equipment, Inc.,
336 N.L.R.B. 1059 (2001). That case involved strikingly similar
facts: a private employer engaged in school bus transportation
took over the provision of services to a public school district but
refused to recognize the union that had previously represented
the district’s bus drivers. Id. at 1059-60. The company
maintained that substantial continuity was absent because it had
implemented many operational changes. Although the Board
recognized those changes, it rejected the company’s argument
because, “viewed from the drivers’ perspective, the drivers are
performing the same work that they performed as [school
district] employees -- transporting school children to and from
[district] schools by school bus and van.” Id. at 1064. In light
of Van Lear, Dean cannot seriously contend that the Board’s
interpretation of the facts in this case was not “reasonably
defensible.” Pennsylvania Transformer, 254 F.3d at 224(internal quotation marks omitted).
Second, the company argues against a finding of substantial
continuity on the ground that it only took over GRPS’ Union
Street facility and not the entire 536-employee GRESPA unit.
But as the NLRB recognized, “[i]t is well established that the
Board may find substantial continuity even where, as here, a
successor employer has taken over only a discrete portion of the
11
predecessor’s bargaining unit.” Dean, 350 N.L.R.B. No. 4, at 1
n.2 (citing Van Lear, 336 N.L.R.B. at 1063-64; Bronx Health
Plan, 326 N.L.R.B. 810 (1998), enforced, 203 F.3d 51 (D.C. Cir.
1999) (unpublished table decision)). Once again, Van Lear is
directly on point. Although the bus drivers in that case had
previously been represented in a larger unit that also included
custodians, maintenance workers, and secretaries, the Board
found substantial continuity “even though [the new employer]
did not take over all the operations and functions of the prior
[school district] bargaining unit.” Van Lear, 336 N.L.R.B. at
1064.
Nor, as the Board correctly held, is Atlantic Technical
Services Corp., 202 N.L.R.B. 169 (1973), to the contrary. In
Atlantic Technical, the Board found that a small company that
took over the mail distribution function from aviation giant
TWA was not TWA’s successor. “[T]he new unit contained
only 27 employees out of the TWA nationwide unit of 14,000,
1100 of whom were based at the same facility.” Dean, 350
N.L.R.B. No. 4, at 1 n.2. As the Board noted in Dean,
“[n]othing like those ‘peculiar circumstances’ exists here. The
GRPS bargaining unit included 536 workers, 168 of whom
worked at the 900 Union Street facility,” and “[a] large majority
of those 168 employees continued working at the facility after
the change in management.” Id. (quoting Atlantic Technical,
202 N.L.R.B. at 170). Although Dean charges that the Board
unfairly limited the reach of Atlantic Technical by characterizing
it as involving “peculiar circumstances,” Petitioner’s Reply Br.
3-4, that characterization comes from the Atlantic Technical
opinion’s own description of a small company taking over a
small part of a giant entity, see Atlantic Technical, 202 N.L.R.B.
at 170.
Finally, before the agency Dean argued against a finding of
substantial continuity on the ground that the Union Street
12
workers, who at GRPS had been public-sector employees
governed by Michigan law, were now private-sector employees
subject to a different statutory scheme. In response, the ALJ
correctly noted that “[t]he Board has applied [the usual
successorship test] even where, as here, the predecessor is a
public entity.” Dean, 350 N.L.R.B. No. 4, at 11 (ALJ Op.)
(citing Community Hosps. of Cent. Cal., 335 N.L.R.B. 1318(2001), enforced, 335 F.3d 1079 (D.C. Cir. 2003); Lincoln Park
Zoological Soc’y, 322 N.L.R.B. 263 (1996), enforced, 116 F.3d
216 (7th Cir. 1997); JMM Operational Servs., 316 N.L.R.B. 6(1995)). Indeed, in Van Lear, the Board held that “the
successorship doctrine continue[d] to apply even though the
predecessor [school district]. . . [wa]s a public employer” and
the successor bus transportation company was not. Van Lear,
336 N.L.R.B. at 1064. And in Community Hospitals, this court
likewise ruled that “[t]he change from public to private
ownership of the hospital does not undermine the Board’s
finding that Community was a successor.” Community Hosps.,
335 F.3d at 1084.
On appeal, Dean focuses not simply on the general
differences between public and private employment, but on the
fact that the employees “will now have the right to ‘strike’”
under the NLRA, a right that was unavailable to them as public
employees under Michigan law. Petitioner’s Br. 27. Dean
suggests that employees who acquire the right to strike under the
NLRA may not want to be represented by the same union that
represented them under a state statute that barred strikes. In
response, NLRB counsel argues the opposite, contending that
“the acquisition of the right to strike is more likely than not to
support former public employees’ desire” for continued
representation. Respondent’s Br. 41.
We do not resolve this dispute. Dean did not mention this
right-to-strike argument in any of its filings before the Board
13
and offers no excuse for not doing so.1 Section 10(e) of the
NLRA therefore prevents us from considering it. 29 U.S.C.
§ 160(e) (“No objection that has not been urged before the
Board . . . shall be considered by the court, unless the failure or
neglect to urge such objection shall be excused because of
extraordinary circumstances.”). Given that none of the Board
precedents discussing the impact of a public-to-private change
on the issue of successorship addresses the right-to-strike point,
there was no reason for the Board to suspect that this was the
objection Dean was raising. Dean’s general reference to the
different statutory schemes was therefore insufficient to put the
Board on “‘adequate notice’ of the argument [the company now]
seeks to advance on review,” and we are barred from
considering it. Highlands Hosp. Corp., Inc. v. NLRB, 508 F.3d
28, 33 (D.C. Cir. 2007) (quoting American Postal Workers
Union v. NLRB, 370 F.3d 25, 28 (D.C. Cir. 2004)); cf. id.(holding that a petitioner’s “generalized” “reference to the
‘excessive breadth’ of a remedy with multiple parts” was
insufficient to put the Board on notice that the petitioner was
challenging the adequacy of the justification for an affirmative
bargaining order).
III
Dean also maintains that the unit of drivers, route planners,
and mechanics at the Union Street facility does not constitute an
appropriate bargaining unit. Our standard of review when
considering such a claim is, again, quite limited. The Board
“need only select an appropriate unit, not the most appropriate
1
Dean observes in a footnote that the Mackinac Center for Public
Policy had attempted to file an amicus brief with the NLRB that would
have raised the right-to-strike issue. Petitioner’s Reply Br. 8 n.5. But
the Board denied the Mackinac Center leave to file, and Dean never
raised the issue in its own pleadings.
14
unit.” Serramonte Oldsmobile, Inc. v. NLRB, 86 F.3d 227, 236
(D.C. Cir. 1996) (quoting Cleveland Constr., Inc. v. NLRB, 44
F.3d 1010, 1013 (D.C. Cir. 1995) (internal quotation mark
omitted)).
Dean’s principal contention is that the Board erred in
finding appropriate a unit consisting of employees at a single
facility. But as the ALJ stated, “[t]he Board has long recognized
a presumption that a single plant or store unit is appropriate for
purposes of collective bargaining unless it has been so
effectively merged into a comprehensive unit, or is so
functionally integrated, that it has lost its separate identity.”
Dean, 350 N.L.R.B. No. 4, at 11 (ALJ Op.); see Community
Hosps., 335 F.3d at 1084; Van Lear, 336 N.L.R.B. at 1063.
Dean argues that a single-location unit is not appropriate in this
case because the company has merged the bus drivers at Union
Street into its company-wide operations, and the Union Street
drivers therefore no longer retain a separate identity. To support
this argument, Dean notes that: its regional and corporate
managers supervise all Dean employees; the company has
adopted firm-wide training and personnel policies; the Union
Street facility is located only eight miles from another Dean
facility; and occasional interchange has occurred between
employees at Union Street and those at other facilities.
Although the ALJ acknowledged that Dean is “a highly
centralized operation,” he concluded that the factors noted by
Dean did not undermine the single-site presumption because:
onsite supervisors oversee day-to-day operations at the Union
Street location; as a result of the contracts that Dean signed with
GRPS and KISD, Union Street drivers are treated separately
from drivers at Dean’s other facilities for job assignment and
bidding purposes; the degree of interchange between Union
Street and other facilities is minimal; and Union Street is the
only depot that employs a substantial number of general
15
education drivers in addition to special education drivers. Dean,
350 N.L.R.B. No. 4, at 12 (ALJ Op.). Substantial evidence in
the record supports all of these findings, and Van Lear again
supports the ALJ’s conclusion. There, the Board found
appropriate a single-site unit composed of the predecessor’s bus
drivers, notwithstanding that the successor was “centrally
managed” from its home office, because the on-site supervisor
“maintain[ed] discretion and independence on certain matters”
and because there was no interchange between the drivers at the
different locations. Van Lear, 336 N.L.R.B. at 1063.
Dean presses upon us Dattco, Inc., 338 N.L.R.B. 49 (2002),
a case in which the NLRB found that the respondent had
rebutted the single-site presumption. We agree with the Board,
however, that Dattco “is easily distinguishable on its facts
because the operation of the facility in Dattco was completely
integrated with a network of other facilities.” Dean, 350
N.L.R.B. No. 4, at 1 n.3. As the Board noted:
Fully one-third of the bus drivers in Dattco were
shuttled from their home facilities to other terminals on
a daily basis . . . . Upon arriving at the new facility,
drivers were supervised by managers based at that
other facility. Here, the drivers work exclusively out
of their home facility, where their routes and runs are
determined, and where they are supervised by the local
managers. This autonomy of the 900 Union Street
facility over day-to-day operations . . . distinguishes it
from the facility in Dattco.
16
Id. At oral argument, Dean acknowledged that the facts of
Dattco do distinguish it from the instant case. Oral Arg.
Recording at 14:28-38.2
In concluding that a single-site unit was appropriate, the
ALJ also properly gave weight to the fact that the drivers, route
planners, and mechanics at the Union Street facility “had a long
history of being represented by GRESPA.” Dean, 350 N.L.R.B.
No. 4, at 11 (ALJ Op.); see Community Hosps., 335 F.3d at 1085(“[A] group of employees with a significant history of
representation by a particular union presumptively constitute[s]
an appropriate bargaining unit.”); see also Trident Seafoods, Inc.
v. NLRB, 101 F.3d 111, 118 (D.C. Cir. 1996). Dean objects that
the Union Street employees were never a “historical bargaining
unit,” but instead were merely part of the larger 536-person
GRESPA unit. As the ALJ correctly observed, however, “[t]he
fact that the employees [who Dean] hired to work at 900 Union
Street were only a subset of a much larger bargaining unit is not
determinative of the appropriateness of the unit.” Dean, 350
N.L.R.B. No. 4, at 11 (ALJ Op.) (citing Community Hosps., 335
F.3d at 1085). Indeed, we rejected an argument identical to
Dean’s in Community Hospitals because it “would have us
distinguish between a previously recognized bargaining unit and
a subset of such a bargaining unit, limiting the presumption of
2
The other cases Dean cites as examples of inconsistent
precedent are also readily distinguished. See, e.g., Prince Telecom,
347 N.L.R.B. No. 73, at 5-6 (2006) (finding the single-site
presumption rebutted, in part because dozens of employees had
participated in temporary interchanges and because work assignments
were organized by system rather than by facility); Jerry’s Chevrolet,
Cadillac, Inc., 344 N.L.R.B. 689, 690-91 (2005) (finding the
presumption rebutted because four facilities were located within a few
feet of each other and shared a common employee parking lot, among
other similarities).
17
appropriateness to the former.” Community Hosps., 335 F.3d at
1085. The petitioner in that case, we said, “provide[d] no
authority for this distinction,” which “is inconsistent with our
[own] precedent.” Id. (citing Int’l Union of Elec., Radio &
Mach. Workers, AFL-CIO-CLC v. NLRB, 604 F.2d 689, 695
(D.C. Cir. 1979)). Dean has been no more successful in finding
relevant support.3 And while Dean also insists that the
“bargaining history” upon which the Board should have focused
was that between Dean and DTEU, the case law instead
concentrates on the history between the employees and their
union. See, e.g., Community Hosps., 335 F.3d at 1085; Trident
Seafoods, 101 F.3d at 118.
Dean further maintains that the Board should have applied
the systemwide presumption it uses in the public utility industry,
rather than the single-site presumption it employs generally and
applied here. The Board applies the systemwide presumption to
public utilities because they are “characterized by a high degree
of interdependence of [their] various segments” and “the public
has an immediate and direct interest in the uninterrupted
maintenance of the essential services that this industry alone can
adequately provide.” Baltimore Gas & Elec. Co., 206 N.L.R.B.
199, 201 (1973). For those reasons, the Board is “reluctant to
fragmentize a utility’s operations.” Id.3
Border Steel Rolling Mills, Inc., 204 N.L.R.B. 814 (1973), did
not hold, as Dean asserts, that “the Board should not apply the single-
site presumption, unless [a] unit was previously ‘intact’ as a single site
unit.” Petitioner’s Br. 36 (emphasis omitted). Rather, in that case the
Board found there was “an insufficient community of interest” among
the employees of the previous employer’s bargaining unit “to warrant
a separate bargaining unit for those employees” because they had
become “an integrated part of [the new employer’s] overall
operation.” Border Steel, 204 N.L.R.B. at 822 (ALJ Op.). As
discussed in the text, that was not the case for the Union Street
employees.
18
GRPS is not a public utility, of course, and only one Board
decision has extended the systemwide presumption beyond that
industry. That case is easily distinguished. In Alyeska Pipeline
Service Co., 348 N.L.R.B. 808 (2006), the Board applied a
systemwide presumption to a company that, although not itself
a public utility, used a pipeline to transport 98% of the crude oil
in Alaska. Id. at 809-11. The company, “which ha[d] an
integrated and interdependent operation, [was] the sole source
of supply for public utilities that render[ed] essential services to
the public.” Id. at 810. Dean’s business does not enjoy a similar
monopoly of school bus transportation in Michigan. Nor has the
NLRB applied a systemwide presumption in its cases involving
private bus transportation for public school districts. See
Dattco, 338 N.L.R.B. at 50; Van Lear, 336 N.L.R.B. at 1063.
There was nothing arbitrary in the Board’s decision to follow
those on-point precedents.
Dean contends that “a single facility unit at 900 Union
Street as opposed to a multi-facility unit increases the likelihood
of labor disputes and work stoppages, as Dean will now have to
bargain” with two different unions. Petitioner’s Br. 35. We
acknowledge that recognizing a single-site union where another
union otherwise has company-wide recognition may complicate
bargaining for Dean. And Dean is correct in suggesting that an
important policy behind both the NLRA in general and the
Board’s successorship doctrine in particular is the maintenance
of industrial peace. See Fall River, 482 U.S. at 38; Brooks v.
NLRB, 348 U.S. 96, 103 (1954); Harter Tomato, 133 F.3d at
937. But both the Supreme Court’s and the NLRB’s cases
reflect the view that, in a successorship situation, industrial
peace is best maintained by honoring the employees’ original
choice of bargaining representative. As the Court said in Fall
River:
19
If the employees find themselves in a new enterprise
that substantially resembles the old, but without their
chosen bargaining representative, they may well feel
that their choice of a union is subject to the vagaries of
an enterprise’s transformation. This feeling is not
conducive to industrial peace.
Fall River, 482 U.S. at 39-40; see Community Hosps., 335
N.L.R.B. at 1334 (ALJ Op.). This is a policy judgment that we
are without authority to supersede. See NLRB v. Curtin
Matheson Scientific, Inc., 494 U.S. 775, 786-87 (1990).
At oral argument, we asked Dean’s counsel whether there
was any case in which the Board (or a court) had found the
successorship factors satisfied but nonetheless declined to make
a finding of successorship because another union was
representing similar employees company wide. Counsel could
not point to any, but did direct us to NLRB v. Burns
International Security Services, Inc., 406 U.S. 272 (1972), as a
case that emphasized the concern for maintaining industrial
peace. In Burns, however, the Supreme Court required Burns
International, which replaced another company that had
provided protection services at a particular site, to recognize the
union that had represented its predecessor’s employees at that
site -- notwithstanding that a different union represented Burns’
workers at its other locations. Burns, 406 U.S. at 275-76, 279-
80. Hence, if Burns is indeed the “granddaddy of all successor
cases,” as Dean characterized it at oral argument, Oral Arg.
Recording at 33:53-57, then its legacy points to the result
reached by the Board in this case.4
4
Dean also argues that the route planners and mechanics working
at Union Street do not share a community of interest with the facility’s
bus drivers and hence do not belong in the same bargaining unit. The
ALJ, supported by substantial evidence, found to the contrary: “[T]he
20
IV
The NLRB also rejected Dean’s contention that the bus
drivers at the Union Street facility constitute an accretion to the
DTEU unit. Accretion is the addition of a group of employees
to an existing union-represented bargaining unit without a Board
election. As the ALJ noted, “[b]ecause accretion essentially
deprives employees of their statutory right to choose their
bargaining representative, the Board has historically followed a
restrictive policy in applying the accretion doctrine.” Dean, 350
N.L.R.B. No. 4, at 12 (ALJ Op.) (citing Frontier Tel. of
Rochester, Inc., 344 N.L.R.B. 1270 (2005)); see New York
Rehab. Care Mgmt., LLC v. NLRB, 506 F.3d 1070, 1076-77
(D.C. Cir. 2007). “One aspect of this long-standing restrictive
policy . . . has been to permit accretion ‘only when the
employees sought to be added to an existing bargaining unit have
little or no separate identity and share an overwhelming
community of interest with the preexisting unit to which they are
accreted.’” Frontier Tel., 344 N.L.R.B. at 1271 (quoting E.I. Du
drivers at 900 Union Street have more of a community of interest with
the route planners and mechanics at that facility than with the bus
drivers at Dean’s other facilities by virtue of their shared bargaining
history. . . . In addition, they have much more frequent interaction
with these employees and share day-to-day supervision with them.”
Dean, 350 N.L.R.B. No. 4, at 12 (ALJ Op.). The Board has
previously approved units that combine drivers with other
transportation employees, see, e.g., Marks Oxygen Co. of Ala., 147
N.L.R.B. 228, 229 (1964), and, as we have noted, “the Board need
only select an appropriate unit, not the most appropriate unit,”
Serramonte Oldsmobile, 86 F.3d at 236 (quoting Cleveland Constr.,
44 F.3d at 1013 (alteration omitted) (internal quotation mark
omitted)). Dean’s contention that a drivers-only unit would be
preferable ignores our standard of review.
21
Pont de Nemours, Inc., 341 N.L.R.B. 607, 608 (2004)); see
Dean, 350 N.L.R.B. No. 4, at 12 (ALJ Op.).
The factors that the Board considers in determining whether
a group of employees has accreted to an existing unit, many of
which are the same as those it considers in making appropriate
unit determinations in initial representation cases, include:
“integration of operations, centralized control of management
and labor relations, geographic proximity, similarity of terms and
conditions of employment, similarity of skills and functions,
physical contact among employees, collective bargaining history,
degree of separate daily supervision, and degree of employee
interchange.” Frontier Tel., 344 N.L.R.B. at 1271. The “‘two
most important factors’ -- indeed, the two factors that have been
identified as ‘critical’ to an accretion finding -- are employee
interchange and common day-to-day supervision.” Id. (quoting
E.I. Du Pont, 341 N.L.R.B. at 608); see Super Valu Stores, Inc.,
283 N.L.R.B. 134, 136 (1987) (holding that accretion had not
occurred, notwithstanding that there was “integration of
operations, similarity of employee skills, functions, and working
conditions, and . . . contact between [employees at separate
locations],” because there was neither employee interchange nor
common supervision).
The ALJ rejected Dean’s accretion argument because he
found both of the critical factors to be absent: “The
overwhelming evidence in this record establishes that the drivers
at 900 Union Street do not share common day-to-day supervision
with [Dean’s] drivers at its other facilities,” and “there is very
little evidence of the kind of employee interchange that would
support a finding of accretion.” Dean, 350 N.L.R.B. No. 4, at 12
(ALJ Op.). These findings are supported by substantial evidence
and are therefore entitled to our deference.
22
V
Finally, we address Dean’s contention that its refusal to
recognize or bargain with GRESPA was justified because the
union made an inappropriate demand. GRESPA’s September 1
demand letter advised Dean that GRESPA 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. It therefore
asked Dean to recognize it as the exclusive representative of the
unit employees, including “bus drivers, dispatchers, mechanics,
[and] route planners” at Union Street. Id. GRESPA did not
represent the dispatchers when GRPS operated the facility --
although it did represent a category called “dispatchers/route
planners” -- and the dispatchers were not included in the unit
alleged in the General Counsel’s complaint to be appropriate.
Dean contends that this disparity, between GRESPA’s demand
letter on the one hand and the unit it historically represented (and
that was alleged in the complaint) on the other, rendered
GRESPA’s demand ineffective because it did not “‘clearly
define the unit for which recognition is sought.’” Motown
Record Corp., 197 N.L.R.B. 1255, 1261 (1972) (quoting The
C.L. Bailey Grocery Co., 100 N.L.R.B. 576, 579 (1952)).
The ALJ’s response is persuasive. As he explained, the
union’s
demand, when read in its entirety, is sufficient to
convey to [Dean] GRESPA’s desire to negotiate on
behalf of an appropriate unit of employees. The first
sentence in the letter explicitly states that GRESPA was
seeking recognition as the bargaining representative of
those ‘employees performing transportation services for
[GRPS] students that have been hired by [Dean]’ . . . .
The use of the term ‘dispatchers’ in the second
23
sentence, although confusing, was consistent with the
bargaining history between GRESPA and GRPS where
route planners had been classified as ‘dispatchers/route
planners’ and had performed dispatch functions as
needed. If [Dean] had any doubt about GRESPA’s
demand, it certainly could have sought clarification.
Dean, 350 N.L.R.B. No. 4, at 13 (ALJ Op.) (second alteration in
original). Moreover, as the Board noted in affirming the ALJ, it
had “rejected an identical argument” in Hydrolines, Inc., 305
N.L.R.B. 416 (1991):
As the Board there explained, when a union demands
recognition based on a card majority in an initial
organizing context, the union is aware of which
employees it has been attempting to organize, and thus
may be expected to present the employer with an
accurate description of the unit it seeks to represent. . . .
[H]owever, we do not expect perfect precision from a
union bargaining demand in a successorship situation
(such as this one), as the union may be unaware or
uncertain of a successor’s plans for its hiring and
operations.
Dean, 350 N.L.R.B. No. 4, at 2 n.5. Because GRESPA’s unit
description “merely . . . deviated slightly from that in the
complaint,” the Board concluded that the union’s demand for
recognition was effective. Id. That conclusion was neither
arbitrary nor capricious.
24
VI
For the foregoing reasons, we deny Dean’s petition for
review and grant the Board’s applications for enforcement of its
order.
So ordered.