K.A.L. Leasing, Inc.

National Labor Relations Board - Board DecisionsMar 5, 1981

254 N.L.R.B. 1118 (N.L.R.B. 1981)

1 1 1 6 artd te-entitled four~d Inc. 240 (1979), enahle contlitions rc By lequest Tlie :ase 9(c)(l) 2(6) Tk contlacts Eimployer's be- tweefi iixed bit1 * sub- A28's hLRB DECISIONS OF NATIONAL LABOR RELATIONS BOARD K.A.L. Leasing, Inc. Danville Bus Drivers Union, affiliated with the Illinois Education As- sociation, Petitioner. Case 33-RC-2557 March 5, 1981 DECISION ON REVIEW AND DIRECTION O F ELECTION Cn December 21, 1979, the Regional Director for Region 33 issued a Decision and Order in the abo proceeding in which he declined to assert jurisdiction over the Employer because he that under National Transportation Service, NLRB 565 the Employer does not retain sufficient control over its employees to it to engage in meaningful bargaining over of employment with a labor organiza- tion Thereafter, in accordance with Section 102.67 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Petitioner filed a timely request for review of the Regional Director's decision on the grounds that he made er- roneous findings of fact and departed from official- ly ported Board precedent. telegraphic order dated February 12, 1980, the for review was granted. Board has considered the entire record in this with respect to the issue under review and finds that a question affecting commerce exists con- cern ng the representation of certain employees of the Employer within the meaning of Section and Section and (7) of the Act, and that it will effectuate the purposes of the Act to assert jurisdiction herein. e Employer provides transportation services for the general public and for public school stu- dent:. The latter services are provided pursuant to with school districts in four States, in- cluding Danville Community Consolidated School District 118 in Danville, Illinois. The Petitioner seeks a unit of all regular part-time busdrivers at the Danville facility, all of whom are exclusively involved in the schoolbus service. The Regional Director found, in agreement with the Employer, that the Board should not assert ju- risdiction because District 118 exercises a degree of contrsl over the labor relations policy of the Em- ployer which precludes the Employer from engag- ing in meaningful collective bargaining with a labor organization. The Regional Director relied primarily on the terms of a written agreement the Employer and District 118. This con- tract requires the Employer to provide the person- nel to operate and maintain the schoolbuses owned by District 118. The Employer is recompensed with monthly payments based on its success- ful for the contract and as set forth therein. With respect to labor relations, the contract calls, in paragraph A6, for the Employer to "fur- nish employee benefits mutually considered by the parties to be necessary." Paragraph A28 requires the Employer to obtain the approval of District 118 prior to employing or terminating any employ- ee, to dismiss any employee on demand by District 118, and to obtain the District's prior approval with respect to "all personnel policies and prac- tices." In this respect the Regional Director found that on several occasions District 118 did not ap- prove applicants submitted by the Employer and the individuals were therefore not hired. Also, one individual hired without prior approval of District 118 was immediately discharged by the Employer when District 118 demanded it. The Regional Director also found that the Em- ployer had been required to list in its contract bid all fringe benefits it intended to grant its employ- ees. The Regional Director further relied on the statement of the Employer's vice president that the parties had an "understanding" that any future variations in benefits must first be approved by District 118. In finding that the Employer, through its contract with District 118, has effectively relin- quished its control over its personnel policies, the Regional Director also stressed the acquiescence of the Employer in a District request to modify the contractual provision for driver training, an Em- ployer-District 118 joint grievance system, a re- quirement that the Employer provide the District with a monthly report on route assignments, and the daily presence of a District 118 employee in the bus garage to check on driver promptness. We acknowledge that the provisions of para- graphs A6 and A28, on their face, tend to support the Regional Director's finding that the Employer has surrendered to District 118 control of the meaningful elements underlying collective bargain- ing. However, the record reveals that beneath the contractual form as to employment policies lie tantive practices which refute the Regional Direc- tor's findings as to actual economic control by Dis- trict 118. While the initial wage rates and fringe benefits were specified in the Employer's successful bid, they were not incorporated into the contract itself. It is clear, as admitted by both the Employer and the District, that if wages or benefits were to increase then the Employer's profit margin, itself built into its bid, would fall. The District has pro- tected itself against liability for increased personnel costs through the device of contractually fixed payments for the term of the contract. Paragraph requirement of obtaining the District's prior approval for all personnel policies has simply not been honored by either party. While No. 145 254 possit~le Empl13yer's does Wayland, were resp-ct Wayland overiime contractue 1 language A28. cmtrol coverczd incongruer~ce emerges. Wayland th': now ir~sist c:ffectively hired lhat Wayland Districl day- 1 i nd i~a ted ,~ "retains 9(b) ' Wayland Woods K a I Leasfng, Inc., 1119 K.A.L. LEASING. INC. there do not appear to be any fringe benefits, with the exception of overtime, for the drivers, the mechanics do receive benefits such as vacation pay and sick leave. Noting that the contract not distinguish between drivers and mechanic!; for the purposes of paragraphs A6 and A28, we find that the District's director of trans- portation, William testified that he had never discussed the mechanics' benefits with any officer of the Employer and did not know what benefits involved or their value. Specifically with to drivers' overtime, stated that and its cost were the exclusive re- sponsibility of the Employer and he did not care what it did as long as "we don't have to pay them anymore.' The last is a direct reference to the Em- ployer's sole liability for any costs beyond the fixed provisions. This testimony by the Dis- trict's official responsible for overseeing the con- tract with the Employer as to the District's lack of engagement in the employee benefits area belies the impression of District control given by the contrac- tual of paragraphs A6 and As to of hiring and firing, another sub- ject in paragraph A28, a similar pattern of between the contract and actual practice While District Official did interview some driver applicants at the begin- ning of contract term, this initial employment step is handled by the Employer. The Em- ployer alsc makes independent not-to-hire decisions and passes on to District 118 for approval only the files of applicants it wishes to hire. While District 118 does upon its right to approve applicants the Employer considers desirable and has on one occassion requested the discharge of a driver without its prior approval, there is no indication the District's approval is other than an automaiic procedure. The record fails to dis- close any instance in which the recommendations of the Employer's manager, Eric Johnston, have ever been turned down by the District. testified as to only one circumstance under which the would withhold approval of an appli- cant, namely, the applicant's having been convicted of a felony. The Employer completely controls its own to-day operations despite the activities of District 18's employee, Tracy Woods. Manager Johnston has sole authority to authorize both overtime and discipline. The drivers are paid by the Employer and receive all daily supervision from it. The Em- ployer also maintains all personnel files. The joint Employer-District complaint and grievance system is not in written form, has never been communicat- ed to the drivers, and does not seem to have ever been utilized in practice. It was in any case primar- ily designed not to deal with employee grievances but with parent complaints against drivers with most final decisions in the hands of Manager John- ston. As we have previously a school dis- trict's contractual right to receive route reports re- flects not a concern with terms and conditions of busdrivers' employment but a right to monitor the substantive nature of the service it has purchased. The same consideration applies to District 118's in- sistence that the Employer modify its driver train- ing program. Accordingly, we conclude that the Employer sufficient control over its employees to enable it to engage in meaningful bargaining over conditions of employment with a labor organiza- tion," and we therefore find that it will effectuate the purposes of the Act to assert jurisdiction over the Employer's Danville, Illinois, operations. In accordance with the stipulation of the parties3 and the record as a whole, we find the following unit appropriate for the purposes of collective bar- gaining within the meaning of Section of the Act: All regular part-time drivers employed by the Employer at its Danville, Illinois facility; but excluding mechanics, C.E.T.A. employees, dis- patchers, managerial employees and other su- pervisors as defined in the Act. [Direction of Election and Excelsior footnote omitted from publication.] In any case, testified that he contemplates relieving o f his observational duties in the garage. 240 NLRB 892 (1979). We herein grant the Employer's and the Petitioner's joint "Motion T o Reopen Record T o Receive Stipulation."