                                                                         [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                             FOR THE ELEVENTH CIRCUIT
                              ________________________
                                                                             FILED
                                     No. 11-13681       U.S. COURT OF APPEALS
                                 Non-Argument Calendar    ELEVENTH CIRCUIT
                               ________________________      MARCH 2, 2012
                                                                           JOHN LEY
                                  Agency No. 12-CA-25842                    CLERK




PALM BEACH METRO TRANSPORTATION, LLC,

llllllllllllllllllllllllllllllllllllllllPetitioner - Cross Respondent,

versus

NATIONAL LABOR RELATIONS BOARD,

llllllllllllllllllllllllllllllllllllllllRespondent - Cross Petitioner.

                               ________________________

                         Petitions for Review of a Decision of the
                              National Labor Relations Board
                               ________________________

                                       (March 2, 2012)

Before BARKETT, WILSON, and ANDERSON, Circuit Judges.

PER CURIAM:

         Petitioner Palm Beach Metro Transportation, LLC (“Palm Beach Metro”)
petitions that we review, and the National Labor Relations Board (“NLRB”) cross-

petitions that we enforce, the NLRB’s Decision and Order of July 26, 2011 finding

that Palm Beach Metro engaged in unfair labor practices in violation of 29 U.S.C.

§ 158(a)(1),(5). We hold that the NLRB’s order has an adequate evidentiary

foundation and that it will be enforced.

      The Amalgamated Transit Unit, Local 1577 (“the Union”) was certified in

February 2008 as the collective-bargaining representative of a unit of Palm Beach

Metro drivers. Following the Union’s certification, Palm Beach Metro refused to

recognize and bargain with the Union. In May 2008, the NLRB issued a decision

finding that Palm Beach Metro had violated Section 8(a)(1) and (5) of the National

Labor Relations Act, 29 U.S.C. § 151, by refusing to recognize and bargain with

the Union. The current case involves an allegation that Palm Beach Metro

committed an additional violation of the National Labor Relations Act by reducing

employee work schedules in April 2008 without prior notice to or bargaining with

the Union.

      This proceeding was instigated when the Union filed an unfair labor

practice charge claiming that Palm Beach Metro had unilaterally reduced the hours

and days that its employees were permitted to work. The NLRB’s General

Counsel then issued a complaint stating the same. An administrative law judge

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heard the complaint, found that Palm Beach Metro committed the alleged

violations, and recommended that the complaint be found valid. The NLRB

adopted the administrative judge’s findings and ordered Palm Beach Metro to

cease and desist from its unfair labor practices and compensate its employees for

damages that resulted from the reduction in their work schedules.

      Our role in reviewing the NLRB’s orders is a narrow one. Ga. Power Co. v.

N.L.R.B., 427 F.3d 1354, 1358 (11th Cir. 2005). We are bound by the NLRB’s

factual findings if they are supported by substantial evidence on the record as a

whole. Int’l Bhd. of Boilermakers v. N.L.R.B., 127 F.3d 1300, 1306 (11th Cir.

1997). Substantial evidence exists if a reasonable jury could have reached the

same conclusion as the NLRB. Allentown Mack Sales & Serv., Inc. v. N.L.R.B.,

522 U.S. 359, 366–67 (1998). If the NLRB has made a plausible inference from

the evidence, we may not overturn its findings. Int’l Bhd. of Boilermakers, 127

F.3d at 1306.

      Palm Beach Metro challenges the NLRB’s order on two grounds. First, it

argues that the reductions in employees’ hours were consistent with the status quo

and thus should not have triggered collective bargaining requirements. Second,

Palm Beach Metro contends that the scheduling changes were due to external

factors not under its control, and thus the changes were not subject to mandatory

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collective bargaining.

       An employer that refuses to bargain collectively with a Union commits an

unfair labor practice. 29 U.S.C. § 158(a)(5). Employer actions and decisions

concerning terms of employment such as wages and hours are subject to

mandatory collective bargaining. N.L.R.B. v. Katz, 369 U.S. 736, 742–43, 82 S.

Ct. 1107, 1111 (1962). However, a continuation of the status quo does not

frustrate the bargaining process; there must be an actual change in conditions to

trigger the collective bargaining requirement. See id. at 746, 82 S. Ct. at 1113.

Therefore, a company that can demonstrate that it has an established “past

practice” of certain actions regarding wages and hours, such as a policy of “laying

off and re-calling employees at will,” can escape mandatory bargaining regarding

those actions. N.L.R.B. v. S. Coach & Body Co., 336 F.2d 214, 216–17. In such a

situation, the employer’s actions would simply be preserving the status quo.

      Palm Beach Metro argues that its acts here qualify as such a continuation of

the status quo. In support of its argument, Palm Beach Metro explains the factual

predicate of its actions: it is a provider of transportation services and its exclusive

customer is and has been Palm Tran, Inc. (“Palm Tran”). The contract between

Palm Tran and Palm Beach Metro stipulated that Palm Tran would set the

transportation schedule and Palm Beach Metro would provide transportation

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services, eighty percent of which would be by bus. In 2008, Palm Tran reduced its

demand for Palm Beach Metro services. Additionally, Palm Beach Metro replaced

some of its faulty buses in 2007 and 2008, resulting in drivers spending fewer

hours waiting with the buses while the buses were repaired. Palm Beach Metro

alleges that because these two factors—the exclusive servicing of Palm Tran and

the use of buses—were historically established, its choice to cut employee hours to

respond to changes in these factors is not subject to the collective bargaining

requirements.

      The NLRB found that Palm Beach Metro had never reduced employee

hours in the past and had previously maintained a policy of allowing drivers to

work as much as they wanted. Palm Beach Metro does not contest this finding.

The NLRB concluded that because Palm Beach Metro had never restricted the

work schedules of employees before, it could not have a longstanding practice of

reducing employees’ hours. We find no error in this conclusion. The pre-

existence of certain work conditions does not equate to an established policy of

action within the company regarding changes in employment.

      Palm Beach Metro also argues that because the reduction in employee hours

was necessitated by external factors beyond Palm Beach Metro’s control—namely

Palm Tran’s decreased demand for services—the collective bargaining

                                          5
requirement of giving notice and holding discussions was excused. Palm Beach

Metro contends that bargaining would have been futile and thus was not required.

As a preliminary matter, Palm Beach Metro offers no support for the argument that

there is a futility defense to the collective bargaining requirements of 29 U.S.C. §

158(a)(5). Furthermore, the NLRB found that Palm Beach Metro had hired

additional drivers during or just prior to the period of decreased demand for

services. That was clearly a choice within the company’s control.

      The NLRB found that Palm Beach Metro unilaterally decreased employee

work hours—a finding which Palm Beach Metro does not dispute—and rejected

Palm Beach Metro’s defenses to the collateral bargaining requirement. We find

the NLRB’s order to be well-reasoned and supported by substantial evidence on

the record.

      The petition for review is DENIED, and the cross-petition for enforcement

is GRANTED.




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