National Transportation Service

National Labor Relations Board - Board Decisions

Feb 5, 1979

240 N.L.R.B. 565 (N.L.R.B. 1979)

NATIONAL TRANSPORTATION SERVICE 565
National Transportation Service, Inc. and Truck Driv-
ers & Helpers of America, Local Union 728, affiliat-
ed with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America.
Cases 10-CA 12360-1. 10 CA-1236-2., and 10
CA- 12397
February 5, 1979
DECISION AND ORDER REMANDING
PROCEEDING TO ADMINISTRATIVE LAW
JUDGE
On October 6. 1977. Administrative Law Judge
Robert G. Romano issued the attached Decision in
the above proceeding. Thereafter. the General Coun-
sel and the Charging Party filed exceptions and sup-
porting briefs, and Respondent filed a brief in an-
swer to the exceptions.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
Respondent provides dail schoolbus transporta-
tion and related charter services to public school sys-
tems in the Atlanta, Georgia, area, as well a general
public charter and route services. The majority of
Respondent's employees primarily perform work in-
volving the busing of school children.
The Administrative Law Judge found,. relying on
the Board's Decision in an earlier representation pro-
ceeding involving the same parties.' that alleged dis-
criminatees Hall and Matthews worked in the ex-
empt portion of Respondent's operation and thus are
not entitled to the protection of the Act. Therefore.
the Administrative Law Judge. although having
heard testimony on the substantive allegations of the
complaint, did not in his Decision address the issue
of whether or not the discharge of Hall and Mat-
thews violated Section 8(a)(I) and (3) of the Act.2
Contrary to the Administrative lIaw Judge. we have
decided, as discussed below. to assert jurisdiction
over Respondent's entire operation and. therefore,
we find that Hall and Matthews are employees with-
in the meaning of the Act.
In the prior representation proceeding the Board
found that, to the extent that Respondent is involved
in the busing of public school children, Respondent's
operations are intimately related to public education.
a government function, and therefore declined to as-
|I '~ict til[ 7rmllprwlil n Sert~ /, ]nt 231 Nl RH 980) 197)
Ihe Adnim.,trimc i : JuIdge fiurther found hia.t Relpondcjl' all ,1-
charicof Adolphu Jeffcrfson dMid nlt 1t CSuCL S()(1) 1d 31 f the \t
No excenpttlln , erc t; ken ito thl' fll IlC
240 NLRB No. 99
sert jurisdiction over the busing portion of
Respondent's operation. Subsequent to our Decision
in that case, we have further considered the so-called
"intimate connection" test, and have decided that we
will no longer utilize that standard for ascertaining
whether the Board's assertion of jurisdiction over an
employer with close ties to an exempt entity is war-
ranted. Instead, in this and future cases involving a
determination whether the Board should assert juris-
diction in such situations, we shall determine wheth-
er the employer itself meets the definition of "em-
ployer" in Section 2(2) of the Act and. if so.
determine whether the employer has sufficient con-
trol over the employment conditions of its employees
to enable it to bargain with a labor organization as
their representative.
A leading case enunciating the "intimate connec-
tion" test is Rural Fire Protection Compan r ' 3 in which
the majority described the test as having two aspects:
(I) whether the nonexempt employer retains suffi-
cient control over its employees' terms and condi-
tions of employment so as to be capable of effective
bargaining with the employees' representative. and
(2) where the employer retains such control. "the fo-
cus of necessity is on the nature of the relationship
between the purposes of the exempt institution and
the services provided by the nonexempt employer
. 4 We conclude that the first aspect of this test
i.e., whether the employer would be able to bargain
effectively about the terms and conditions of em-
ployment of its employees-is by itself the appropri-
ate standard for determining whether to assert juris-
diction in situations such as that presented in the
instant case. Once it is determined that the employer
can engage in meaningful collective bargaining with
representatives of its employees. jurisdiction will be
established.' Section 14(c)( I) of the Act is the basis of
the Board's discretion to "decline to assert jurisdic-
tion over an, labor dispute involving any class or
category of employers, where, in the opinion of the
Board, the effect of such labor dispute on commerce
is not sufficiently substantial to warrant the exercise
of its jurisdiction." However, nothing in the legisla-
tive history of this provision indicates any congres-
sional intent that the Board decline to assert jurisdic-
tion over any employer solely because of the
relationship between services it provides to an ex-
empt entity and the purposes of such entity.6
.I NI RB s84 (1975)
216 NI RB at 586
( ( tilh/,dn Htl,,,, , ( I ,,,, a (or/rllon ,,1,, DTpartmcn! , [;:/da/
/'x,:u1/mi 23t NI R B '76 ( 9
' he I IcVll.all hislt,r! of Scc 14(1c(J) establishes that the purpoc,¢ if
thial '¢~l[lo pa, (o1chiiiate I \he ,-Icalled "no-man', land.- that catcugor of
<-c' i,lAiinv1 cilllJ. c di le-, thall a certain Ililume of hiul,incl ,s tand
,,xL i XSll t.he lu d hid rucd I c\-- cr it lri.dlillun ilder Supreme
( 'orlinnled
566 D[)F(ISIONS OF NATIONA. LABOR RELAI IONS BOARI)
We are further unaware of a i, 'alid polic\ considcl-
eration requiring or a';arranting our adherence to tle
"intimate conlnection" test. Iihe test does not ai tlhe
Board in determining whether the assertion of juris-
diction is appropriate in a givetn situation: on the
contiar\, the attempts to define the criteria of "inti-
mate connection" in cases subsequent to Rutral I ir
Protection. xsl[ra. onk indicate the difficulties inher-
ent in applinl so ague a standard. 7 We see no nced
to examine the relationship between anl emploNer
and an exempt entity for which it performs serlvices
for sonic abstract "intilmate connection" which has
no bearing on the employer's ahility to bargain effec-
tivel with a labor organilization as representative of
its employees and ich requines a meticulous and.
in our view, superfluous nIlalvysis of the facts in o rder
to ascertain hether in thie Board's opinionl tile
employer's services are essential to the purposes of
the exempt entity. universally recognized ais a Lox-
ernmental function. statutoril) mandated or non-
commercial in nature.'
Accordingly. we conclude that the "right of con-
('otll detiClOllS , clllplotcr, eel' %thlct the IIs.tol stilidt Itot . cIt l1Utl11t-
fiuol cec aL.SO prcludeid Oflln ICLotlt To M xl .ellticx t1 ito lt lll S, t' g
(/11 . &01I,/ [ /TIm ll¢'* I P I S.1 o% rd P-d l ! 1 t dn l, l lllll1 (4l " / I Cl
lIabor RulHllut, H9ird, . 352 S. 17 19S6i tcc .t ,xo I ( it Rct 5 1 I(9
(dafil ed.. I ch 4. 1959). a1 ICpIIliletId t II I 99)1. 995 I 195)
Seve. for e.xamplcs. ,cre julrlidlcto 'n, ,xliticd. i. 1 /.I I . t I,
atc,, Imr 218 NlRB 191 32 1975} (cspondcni's ranspoltoll ol I llrlxi,
;lltillg htlquol\ W it 11,otl It lllltl,Cl\ rTco( irllI/ co\cItIllltCI I lll [tlltl
11d l nolls t it1 ,,II at11 el c.I nil .'tcd it tie stll k c\xc lp1 teld I)pell.ltl ,lll (rI
Atint thei Slirdl 11urt. 221 NI RB 1215. 121h l1975) (opcrlln 'i I
hospilt.l "nol nCcesrilx s, hililc or Ir1ditlnal I11uticiptl fintllto il1 1i .
wirrat t declining tI .rscr It rn tltlLT): \w t 1ll t tIi i tl IJ
4muerea, 4l1. ( 0 fliu't R, hrlai t/Iiznaci Icii. Ir, 227 \ I R 21
(1976) (jurisdicion asserted ixer aI c rp orar.loll dc,itllal hx .1 I Plcll o R1-
can puhiltl .genc , purstUllnt l ti Ihl laIle'i stlilllll s nlllldatc. to plotllIc
cea;n ranspo.rlation bcltcen Pctletro Rico illd the Ia;lilllltlld Ited Sltat.
itn ground, that the orporlllOs opcratio Ikcre ..ciI ii CmlillIltCIP,.I1 III
natulre: ( alni w .l.l(/i til Rlwsi,l HlBtrcfil. 231 NI RB 5()I1197'7) Il Illl
th;ll tile Board had neer "held tha Ilertl hcc, l al I funiittlln t] Cli L It
tniandalcd h tle stIC ILittes r IglsltlttiUrc te ntork ill qtclltll / ,t
collis intllllaltclx llcnectcd lit l e thlc SilIc ( l lxicic ch Ht-.'.t (
tiiuit /ranti (r/praulth 226 Nl RB 12. 14 1976. l, hcic the ilti.p.1it.
in dcciiil to assert ItlrlsdllctiOll o()cr tihe coilh tliu l p titi lio1 1ti
cnipio)cr's operatltilnl. oicludti t"lli r I Illpl-Lcl. hU ItiI 1, rpllol IItIeni
,tale-required ser.icc,. shalrrcs te ltittrlupIlitlle
'
cclll[ptil fitll, [i e
Board's i elol] of lrisdicoln": ll llllll\. hll/n!il .lX/ilI, 2211
NI.RB 299 (1975).
Iti ttllrtxe\ tIcir [CII ttrllrltlu 1 ,L Ih.tll llll¢ 1 tI Iic lltlllii ic.1111L' -
Itltt ICst wil hc filr recll. li an d, In l theil ic. tc . ctelcI li -.;llllli.l-
litlS. tthe issenters diaIIttC all . rgilIlent that s ilrt(1th Ille llrt ll i
ec ercise in clrtll;l rl Itnlllg. I hu, liltliilith tilc dlxhclitct tIIl IllIdtll td-
1), lcorre t tlhat all puht c Clle llitl ccs. 111titllClCl fitllICl t I tIt ltC 1 1, l11t
posecss a legall rccugt ed tulc i th lt t l rietr ." thc i itic tbcfoltc tl I l iI the
merlls of a righllt t strik f phltc cnlploees. bt wcilict tlc ht.u,dicr,
arti] ttctill.il here llar public oi plli\l'C CI llol ccs Jtl ll i ti illl tIC illh .1
prcllllSc 'llltch e it'c cl Ill;t t lllhlltcct i I;t lllC ctlli tl.\ illc o hI
rtlted like plihlil cniplolcc i and c\thldc 1d111 ltic thle I t tl C I l 1i \kl
iltiell hcti.l Ihuc pihllx\Lde scrlld C M itl i tIo tlsxc ttplxIt 1 d h\ 1ub1lti
clpllo\ccl. tic ilisscllte s ill lst tlhe lsie h\ Iietll g lil i il [lt-h-ixttlitk '
;IrgtllIl . ()f lr 'c 1II[h dis-enlllr rce gnTll Ihil oLIr (l'LIlI . ll. Ii er il I1I l
aITnl m. ilot. rlntle t icL l tllt t critkc tti pIubl c, .1 .I i 1c I ti , iillc, 1 11 li,1
posses, it It th1 i rciti i oll hx c/I tlx t IIx, h h l ll t xe Cl I2 I.llciuCii cli
h1i tlh ligllt to ' triL e - l l l[X Ihcll txitc 1oll of theic i5ll.lillt' LII1
hundrlcrs 1,,, Fn he AO
trol" test provides a more oblective. precise. and de-
finitive standard for delterminiiig discretionar): juris-
dictional issues than the "intinmte connection" test.
Bt utilizing the former we shall avoid some of the
ambiguities presented b the latter and better exer-
cise the discretionar jurisdiction allowed us under
Section 14 of tilhe Act.
Applyiing these principles to the instant case we
note tha it is undisputed that Respondent is not an
cexeipt governmellcnta l subdivision. l he record estah-
lishes that. while the school districts for which Re-
spoinleint provides bus services designate the arrival
alid departure times of the buses, the school districts
exrcise o appreciable control over Respondent's
employees with regard to hiring firing. supervision.
discipline, work assignmenicts. or the conferring of
benefits. Accordingly, we conclude that Respondent
retains sufficient control over its employees to enable
it to engage in meaningful bargaining over condi-
tions of employmient with a labor organization, and
we shall therefore assert jurisdiction over Respon-
dent's entire operation.' °
Consequently we further find that alleged discrim-
inatees itall and Matthiews are employees within the
meanii of the Act anid we shall therefore remand
this proceeding to the Administrative Law Judge for
preparation and issuaice of a Supplemental Decision
on the merits of the issues involving their discharges.
ORD ER
It is hereb ordered that this proceeding be. and it
hereb is. remanded to the Adiministrative Law
Judge for the preparation anid issuance of a Supple-
mental Decision on the merits of the allegations of
the complaint concerning the discharges of Ronald
llall and Fred Matthews. including findings of fact.
conclusions of law, and a recommended Order based
thereon. Following service of said Supplemental De-
cision on the parties the provisions of Section 102.46
of the Board's Rules and Regulations. Series 8 as
anllIcded, shall be applicable.
MI MlSl RS M t, RI't 1i \,I) PI l.I I I ( dissenting:
('onlrary to our colleagues. we would adhere to the
Board's ecision in the related representation case''
illd decline jurisdiction over Respondent's operation
insofar as it involves the busing of public school chil-
I Iicic I c l i ctrl ai ptl c Iirci 11il I r l i iil c\tu l l l t he "di cc fll
LI).AIo" M ndald . SIt, c .( SCll , ,, ( ,, ,tt f ,. 1h, ( *t1' P I ld t 1111(' / If 11 It-
lti 2(1` N R 718 (1974
II Ititllt I- OIcrl tl I dI l ti il111tt iItIC x(i1111 (1Ih11 t i 'll" CI i)i lltIh I1
Il i lllll\ Il I llll ll Irssel /"ri ll o 1R l l CI Pl espllldent l irle
lre I"illalld Ju delelllel{]111 \htlhcfl Cll pi i , e\CIllpl front Board
Il lll il ll. 1 hc ilc h o 1\C Illl' Dc. t l I)CCMI t hC CxICll 1 I IIIt l)MI1tCIn
w! l 1 .rI,,..i ]llt l o li[ s)l h h. /H 211 NI RI, 81) 1 ( 977 )
NATIONAL. TR ANSPORTArTION SERVICE 567
dren. We would further continue to applk the inti-
mate connection" test as anll appropriate standard for
determining whether or not to assert jurisdiction over
an employer whose operation is closely connected to
a overnmental entity.
The present majority concedes that the "intimate
connection" test has been used h the Board in nu-
merous cases but nonetheless asserts that this majori-
ty will no longer use this standard because it is
"vague" and "unnecessary." We cannot agree. Al-
though the intimate connection test may be difficult
to apply' in some situations, this difficulty is not due
to any)' inherent defect in the test but, rather, to the
factual complexity of man of the cases which re-
quire a determination as to whether the Board should
exercise its discretionary jurisdiction. Indeed. the in-
timate connection test is the only one which, in every
instance in which the extension of the exemption to
the employer involved is raised, enables us full to
scrutinize and examine that relationship.
In determining that certain types of enterprises are
not "employers" within the meaning of the Act. ('on-
gress necessarily concluded that subjecting such enti-
ties to the strictures of the statute would not effectu-
ate national labor policy. It follows that it would also
not be in the best national interest for this Board to
assert jurisdiction over employers who although not
by definition excluded from the Act's coverage. are
nonetheless so closely related to exempt entities that
the policy considerations underlying the latters' ex-
emption also apply to them.' 2
The Georgia state constitution provides that edu-
cation shall be "a primary obligation" of the State of
Georgia.' 3 The State further provides by statute for
compulsory enrollment and attendance in school for
children through 16 years of age with attendant pen-
alties for noncompliance.'4 Thus, it is manifest that
the State of Georgia has assumed the obligation of
providing educational opportunity to all school age
children. It is proper to assume that a substantial
percentage of school age children would be unable to
attend school or would unavoidably subject their
parents to the hardship of providing transportation
to and from school if it were not provided b,, the
school systems. Consequently. the State requires that
the State Board of Education shall allocate funds to
local school boards to compensate them for the costs
involved in providing bus transportation for those
students who require it."
ihe .fi rlotr rronolukIl] clhoo.,e, to ch.,racleri the BoLrd's p.i'l IC-
fu~al to aserl uridiction dner ,uch emnploter, . ;,I cxercie if it, i -
lion under Se 141tl1) of he A.1I Raither. the B.tld ht., flin l l 1ctc
.case Ihait he enpli cer h.laed the .[ai ' ¢1, \-ll rl HIIIIIn f . t ue\t},. licl
hodJy froii our lurldil .ion
rSee arl VIII, scc 2 4111. of he (corL . l.,tittililon
See (i.a (ode ' n tP2 2111
In order to meet its obligation to provide educa-
tional opportunity to all school age children. the
State of Georfia through the Atlanta and Decatur
('oiunit school boards hais determined that it would
meet its educational obligations by contracting with
Respondent to provide the requisite bus services.
Ihe record clearly establishes that Respondent's
operation is chiefly devoted to providing children
with bus service to and from school and related ac-
tivities. Thus. all but 4 of Respondent's approximate-
I1 99 buses are school buses used primarily to trans-
port children to and from school and related
activities in the Atlanta area.
Because public schools have a basic obligation to
make the educational facilities accessible and a fun-
darmental interest in assuring the safe arrival and re-
turn of their students, public school districts have
traditionally had a principal role in providing trans-
portation to school children. Thus, busing of students
to and from school is readi!N identifiable with the
exempt purposes of public school districts and is re-
carded as essential to those purposes. Indeed. the
fact that busing is generally required by state law is
further evidence that its provision by a municipality
is essential to the effective operation of public school
s stems.
As the Board emphasized in Rural Fire Protection
(opajmv.6 the focus in deciding these issues should
be upon the relationship between the services per-
formed by the contractors and the purposes of the
exempt entity. Clearly, the transportation of children
to and from school is an integral part of mandatory
public education and, in this capacity. Respondent's
operation is so interrelated with the statutorily man-
dated functions of the government entity as to share
its exemptions Therefore, as in National Tnspor-
tation Service. Inc., sItpra,. we find that, insofar as its
school bus operation is concerned, the Emploxer
shares the exemption of the various school districts
from the Board's jurisdiction.
The ramifications of abandoning the intimate con-
nection standard extend well beyond that of school
bus transportation cases. In Rural Fire Protection
('oipani. vupra. the employer provided basic fire-
fighting protection. under contract, to the city of
Scottsdale. Arizona. Thus because the employer per-
See ( ( de -Ann 32 (25.
12k( NI RB 4 (197')
K R t. /, 1,a l., I . S /1o,. 4 ltsimlon i 4, e ,a,, ri tlsm . t . 229
NI RB 959 977) ( l.ll' n its ui, Iz. 226 NRB 4I1976): tIlt] ~
%,i, '. ,, / ( I., .. ..,;w ( ,,pqiw. 225 NiRB #33 (1970 : R,,,, l ,. I .
/i, 224 R 2)0 41th76) eo [luiiher find Inappropriill fo he Hio.id
lrl i/, tll o [ rcCrx thc I r LlrlSlC ,Iml dcri nll.itll n , il.i1ltl/ Irltitl/l1,tl
oI ,, 'I i " \N p.lrl, nl thig pr i cdll[ne I , o .,irn l the v,Ihdi llif Ihe
t.rldl.l 1d li.icd h tilt 1 o.lil d I11 lIC 1 h l )Ci tl ) I l I I I t Il tjIuII 1fi1l
-t> 111.1 I IU II l t I&, ol 1 I. f I,.ll r. it l il Ie I . iII, .1 I' i tl l of R poi drll r'II
fiC I,.lIIlI}
568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
formed an "essential municipal function," the Board
found that it shared the exemption of the cit 3 from
the coverage of the Act. lo our knowledge, nowhere
in the nation do municipal firemen possess the legal-
ly recognized right to strike-for reasons too obvious
to require explanation. Yet the effect of the majorit
decision is to grant that right to firefighters who, al-
though directly employed by a private employer, pro-
vide exactly the same protection to citizens of a com-
munity as firefighters who are employed by
municipalities themselves. Indeed, nearly all public
employees, whether or not they have collective-bar-
gaining rights, are forbidden to strike. Employees of
private employers who perform essential government
services, or services which are intimately related to
exempt government functions, should not be brought
within the purview of the Act. As noted, the same
policy considerations which justify excluding govern-
ment employees performing such services from the
coverage of the statute likewise warrant exempting
these categories of private employees from its
scope." The majority misconstrues our position: We
are concerned here with employees of those em-
ployers who are so intimately related to entities ex-
cluded by statute from coverage of the Act that for
various policy reasons--we decline to assert jurisdic-
tion over them. Contrary to the majority's statement.
we are not concerned here with employees who per-
form services "similar" to those provided by exempt
public employees.
Accordingly, as we would continue to apply the
"intimate connection" test, we respectfully dissent
from the majority's decision to assert jurisdiction
over Respondent's entire operation and would adopt
the Administrative Law Judge's Decision in its en-
tirety.
Although the majori t nov asserts tha it i una are
of ."an, aild
policy consideration requiring or warranting our adherence
to the 'inii. late
connection' test." it is noteworthy that Member Jenkins
himself formnel part
of the majority in Rural Fire Proectrion. and that Chairman
Fanning himself
utilized the same test to decline jurisdiction over a private
eniploeil in
Inier-Cunt Blood Ban. In . 165 NRB 252 (1967)
DECISION
STATEMENT OF THE CASE
ROBERT G. ROMANO. Administrative Law Judge: Original
charges in Cases 10-CA-12360-1 and 10-12360-2. filed on
October 28, 1976 alleged that the Employer on about Oc-
tober 20, discriminated in regard to the hire and tenure of
employment of Ronald Hall and Fred Matthews, re-
spectively. The original charge in Case 10-CA 12397. filed
All dales referred ,to herein are in 1
9 7( unles sta.itedl othelulsc
November 12, alleged that since on or about August 25 the
Employer 2 discriminated in regard to the hire and tenure of
employment of Adolphus Jefferson. Thereafter on Decem-
ber 29, the Regional Director for Region 10 of the National
Labor Relations Board, herein called the Board. issued on
behalf of the General Counsel an Order Consolidating
Cases, Complaint and Notice of Hearing, against the Em-
ployer as then named in the charge. National Transporta-
tion and Leasing. Inc. The complaint specified as violative
of 8(a)( ) certain alleged acts of Employer in the nature of
interrogations, threats, conduct allegedly constituting crea-
tion of an impression of surveillance of employees' union
activities and unlawful promise of benefits made to em-
ployees. The complaint also alleged that the Respondent
had discriminatorily discharged the above-named employ-
ees on the dates earlier stated in violation of 8(a)(3) and
(I). On January 5 1977. National Transportation Service.
Inc. (hereinafter referred to as Respondent, filed motion for
dismissal of complaint, denying knowledge of any such
company as was named in the complaint, but acknowledg-
ing that the original unfair labor practice charges were de-
livered to it on approximately the date alleged in the com-
plaint: and further responding to the complaint by
clarifying its business operations, admitting the labor orga-
nizational status of the Charging Party and denying the
commission of any unfair labor practices as alleged in the
complaint. On January 12, 1977, the Charging Party filed
amended charges in each of the above cases naming the
Employer as National Transportation Service, Inc., and
National Bus Sales and Leasing, Inc. On January 13, 1977,
the Regional Director issued consequent amendment to
complaint.
On February 8, 1977, Respondent filed a request for
postponement asserting as basis that a threshold issue of
jurisdiction assertion by the Board was still pending with
the Board on review of a decision rendered in the Decision
and Direction of Election in Case 10-RC-10906. The Re-
gional Director denied this request on February 10, 1977
without prejudice to the Respondent's right to renew the
request at hearing. The matter came on for hearing before
me on March 10 and 11, 1977. At the opening of the hear-
ing, both General Counsel and Respondent advised that
the jurisdictional issue in the representation matter was still
pending before the Board and jointly stipulated for the
admission of the pertinent representation case documents
and transcript. At that time Respondent renewed a motion
for postponement until the Board had rendered its deci-
sion. which was in due course denied.
3
: The Ilname of I he I!mploer appears as is evidenced from he record
he
Board h,;l found tha the business volume of National ransportation
Ser-
icel. Iltc. satisfied it jurisdiclional standards and further found iit unneces-
iars to delerinlnime whether National Transportation Serice.
Inc.. and N-
lon;ll Bus Siales and easing. Ic.. were ,oint emplovers
as was initiall,
fuind b the Regilonal I)irecn Inlasmuch as there is no allegation
in he
t 11 1 ;ILll s amilclided thlt te conripanle ire ia single
eniploer nor it
;1lpCill (lit n! cmiplin t ilCalllls or ciitlentilon )l
(he Csidellce
emenlded l to pecific coniduLt of Natinlil Bus Sale, and
.ealirg. Inc.. I
hkewl c find itii lllnecess ilrs to determine hether the said Iwt
orp r;laitloi
lc Itit cmploxeis. Nlini lr(intlrpriltl S Ili. 231 NIRB 98(0.
5 197'7)
Re l ndeiit blased It, Itl , l c nlillal l on I gluled thai hie Ilne
frit lhleiC e 'ould be experided bh all parties nighl he ob
lated hould
lthe Bonlui t CelIlde no ] nrl rcllsn tsic i a nd econdl that esen
if te
-
-
NATIONAL TRANSPORTATION SERVICE
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel and b the C(ompa-
ny on or about April 15 1977, I make the following:
FINDINS OF F(1
I JLRISD)( TION
As recently found by the Board on August 31. 1977.
National Transportation Service, Inc., provides daily
school bus transportation and related charter services un-
der contracts with Atlanta area school systems. It also op-
erates some general public (route and charter) bus services
as well. During the past fiscal year, it had gross revenues of
approximately $1-1/2 million and purchased goods in ex-
cess of $50,000 directly from sources located outside the
State of Georgia. The Board applying its principles appli-
cable to employers engaged in both exempt and nonex-
empt operations has recently found that the Respondent's
total gross revenues exceeded the $250,000 standard and
asserted jurisdiction over the Employer's nonexempt oper-
ations.4 I find that Respondent is an employer engaged in
commerce within the meaning of Section 2(2). (6),. and (7)
of the Act. In accordance with the parties' agreement. I
further find that the Union is a labor organization within
the meaning of Section 2(5) of the Act.
11 ALLEGED INFAIR LABOR PR4CTICES
A. Background
I. Employer's business operations and preliminary unit
considerations
Employer's business operations are principally oriented
to school bus operations though it also provides bus trans-
portation to the general public either on commuter runs
between Atlanta and certain local cities and factories, or
generally on charter for private groups. Respondent owns
some 95 school buses which it utilizes in its school bus
operations. It operates additionally four transit type coach
buses designed for general public passenger commuting.
Board did find that jurisdiction did exist. t uas psihlc thau the Board
would find such existed only partialls hich affected RepondentC fill
judgment as to what form of evidence should he presented with regard
particular individuals within groups. Ihe parties thereafter agreed that the
instant proceeding would he governed h he Bard's delermlll.tllon f the
jurisdictional issue with reservation h, Respondent or It, riehl to Seek COuII
review in that matter if in its judg ment such hecame .arr.iit ed
Respondenl's motion for postponemen t a denied inlml uhll .i, ;il f the
parties and heir witnesses were present and in the exercisiing of dlrctln ii
was m slew that the halance should he struck in feror .of the ,.apttire of til
evidence at the earliest momenl Addltollll .a Lconsiderali i .t i Is lthe nC-
lerlalned that even if certain emplosec() should esentuitlls he dclicini)lcd
to he exempt violation f the Act mihi nonetheless he prcscet uile
discrimination or interference shown II Ito e he en a.c.ttmplilhled iI 111 1i
going campaign in which nonexempt or protected eniplosccs were cllcrt-
edl? engaged in pursuit of Sec. 7 rights ncttrlcihbls ith C\CII1P t cIrIplrhcc
1 was m view at the tinme Iha( in that exlienc\ .i gccerid tlat i IIhc i lic
would he likels required
4 ;'altta/l iiriOrltl.l .Srl . /i 2l1 NI RH 98() (1971 l
(h Ilrti lrinel ( lp.dril. 123 NI RB 1296 ( 9591
As much as 85 percent of its business operations is in pro-
viding school bus services in transporting students either to
or from school daily or in relationship to extracurricular
and summer (educational and recreational) activities for
students. In all its operations Employer employs approxi-
mately 125 drivers. Respondent also operates its own
maintenance department. It employs 12 service employees
who perform functions such as gassing and oiling the vehi-
cles, and it additionally employs 8 mechanics who main-
tain the vehicles. While a few school buses may occasional-
ly be used for private charters it is clear that the school
buses are principally used in the transport of children to
the various activities. There was no evidence that any
school buses had been used exclusively for private charter
purposes.
As most of the Employer's employees engaged in both
exempt and nonexempt work. the Regional Director in-
cluded in the unit found appropriate 5 all such employees
who performed nonexempt duties for "sufficient periods of
time . . . to demonstrate that they . . . have a substantial
community of interest in the unit's" working conditions.
citing Berea Publishing (Coepanlt. 140 NLRB 516. 519
(1963). The Employer in its request for review contended
that this standard was too vague to determine who was and
who was not within the bargaining unit. In its decision, the
Board determined that four bus drivers of Employer are
engaged primarily in nonexempt work and included them
in the unit. The Board further found that the remaining
drivers were engaged principally in exempt public charter
work for public school systems and do nonexempt private
charter work only on an occasional and irregular basis.
The Board accordingly excluded those drivers from the
unit. However. as to the mechanics, service employees, and
helpers the Board found that the evidence was "totally in-
adequate" for the purposes of either determining which
employees perform a sufficient amount of nonexempt work
or constructing an applicable standard therefor which was
more specific than the one set forth by the Regional Direc-
tor. The Board therefore concluded that "Any remaining
issues as to employee unit placement which the parties can-
not resolve will be resolved through the challenged ballot
procedure."
2. The Union's extended organizational campaign
Pierce Jones, an assistant business agent of Charging
Party, testified that it was about 2 years ago that he initial-
Iv received calls from Respondent's employees seeking his
Union's organizational help. Apparently in November and
December 1975 he held initial but limited meetings with
the employees. After holding off for a period of time there-
after and following a research request made of his Interna-
tional. Jones finally decided about March or April 1976 to
II 11 csititil i reeilenl I th tlc pries, the Region.al I)trct,,r founid a
.ppripril.te it Io he all [tIll-tinle and regular p.rt ime drliser. iechan-
r sic. eIICC ipllosees Ind helpers emplosed hv Naltionali r.allsportiatiion
Ser iceO. Ills.. ii its Xti.lnta. (ecr i.t. operations while eng.aged in pros iding
ii.tcse, nllp s lcrsice. huill extliudll e all other enlpli\o ees. professional.l l cil-
is's. gtltds .ind sipir ,orxsrs i. defined in the ct I h Boa.rd noted tiha
lilC ReColll.al [)iilltoi hls ectludled i, pln clericali, from the unitl a
,utpe,, orlld i il pro) ided thi ihel i l c ll 'rs t ,i le si.uhltc to h.allcrie
[Jl]( l q 11h o pal\ ho gh[ rc'lCg oIf llat dterlllll,ll)ri
569
570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
go ahead with an organizational campaign. It is clear and I
find that Adolphus Jefferson. an alleged discriminatee
herein, signed an authorization card for the Union on May
15. Although having some earlier reports, according to
Jones. reports of employer harassment of employees inten-
sified in August with the result that on September 10, he
sent a wire to the Respondent advising that "There is still
continued union activities in your plant on the part of the
majority of your employees": and that "If any employees
are harassed, coerced, intimidated, discriminated against
or if any unjust or unfair treatment is forced on any of
these employees, we will use every legal method within our
power to protect them, please govern yourselves accord-
ingly." I also take official notice of Respondent's admis-
sion in the representation matter that on or about October
22, it received a request for recognition and declined recog-
nition. The record reveals no history of collective bargain-
ing in Employer's operations. Following the filing of a peti-
tion, a representation hearing in Case I0-RC-10906 was
subsequently held on November 29 and 30. The Regional
Director's Decision and Direction of election subsequently
issed on December 17.
3. The alleged discriminatory discharge of Adolphus
Jefferson
According to Jefferson he began employment with Re-
spondent about early 1972, initially driving a school bus.
hauling students to different locations for various boards
of education. At some point in time thereafter, he was
moved up to operate a diesel (coach) bus. Thus Jefferson's
regular run at the time of his alleged discharge was driving
a commuter (coach) bus from Douglasville, Georgia, to At-
lanta, Georgia, approximately four times a day. He would
pick up passengers from the general public, collect fares.
transport them from one town to another and to various
places in between. He also made runs to Carrollton, Geor-
gia. Additionally, Jefferson worked charters of different
types on assignment by seniority and on rotation which he
estimated were about two a week every other week. It is
clear that Jefferson occupied one of the four busdriver po-
sitions which the Board found to be principally nonexempt
and includable in the unit. The parties in their brief do not
contend otherwise. I so find.
Insofar as Jefferson's union activities are concerned. Jef-
ferson was one of four employees who attended a meeting
with the Union in March. He subsequently attended union
meetings that were held approximately once a month
thereafter. As earlier noted he signed an authorization card
for the Union on May 15. Jefferson testified he had several
conversations with supervisors in June, July. and August in
which the Union was discussed. However, some of his testi-
mony, despite being significantly.led, was simply confusing
in juxtaposition to certain events relating to his tenure of
employment, which events as well as the conversations
were contravened by Respondent's testimony and other ev-
idence. Before proceeding to consideration and evaluation
of those conversations, it is warranted to correlate
Jefferson's development of a serious illness at that time.
According to Jefferson it was in June. after starting a
morning run, that Jefferson first became ill and required
driver relief. Jefferson went home and during sleep had
what was subsequently identified by a doctor as a seizure.
Jefferson testified he had not had this type of illness be-
fore. (He did report to the doctor an accident he had the
prior year, and that he had on that occasion suffered some
form of head injury.) Jefferson returned to work the next
day. and was able to work all that day. When he returned
home that evening he again became sick and had another
seizure (later concluded to be epileptic). Jefferson was car-
ried unconscious to an ambulance to a local hospital for
emergency treatment. At this time, an administering doctor
started him immediately on Dilantin, a medicine designed
to regulate the seizure. The doctor also arranged for him to
be seen later by a specialist at a nearby clinic. Jefferson
was absent from work for about a week and a half. Jeffer-
son testified that he did not report the seizures to the Com-
pany though he did apparently question the Company
upon his return concerning insurance and was assured that
his hospital stay and expenses were covered. According to
Jefferson, he was not actually informed he was epileptic
until advised by the specialist on September 8. It is clear.
however, that the specialist early continued and prescribed
additional regulator' medicine designed to bring the sei-
zures under control.
It was Jefferson's testimony that he had continued to
drive regularly until August 25 when he was discharged.
According to Jefferson. during his discharge conversation
there was no mention of his epilepsy. As will be observed
infra, Jefferson's recollection of the dates of his illness and
treatment by the specialist and even discharge are matters
contested by the Respondent and not wholly supported by
the specialist, particularly on dates and earliest advisement
of being an epileptic. Jefferson's testimony as to the last
day he worked was also confusing.' After his June hospital-
ization, Jefferson again returned to work. He reports that
one morning thereafter he came into work sick and in-
formed Respondent's president and owner, Joe Marcantel,
who assured Jefferson that he would have driver relief if he
became ill. On still another occasion Jefferson reports that
he again began to feel bad while actually on a morning run
and became "drowsy." He parked the bus at a station and
called his Employer who, as earlier promised, sent a relief
driver to finish his route. It is also unclear from Jefferson's
testimony exactly when this latter incident occurred. (It is
probable these incidents occurred in late July'.) Jefferson
did testify that at least on one occasion, sometime in June
or July, Robert Melson (Respondent's superintendent) dis-
cussed with him a transfer to service department and per-
formance of the job of gassing buses. parking buses and
cleaning them. Jefferson also testified that during one visit
with the specialist doctor, he requested an excusing note so
' eflrom ii, tkilg 14)0 nig of )Dilantin. o tablit . d aid 10 rig.
l[ 'hcn h,alrhlll, ine iihlci ill h iorlliillg a d Iv at night. through the
[r?.llollim o[ , xpcctalist
O)i i 1ne ,cca,1ilon. Jcffcrsml thus testicd he wi;l aiked to drie and did
dlic ;. ch;llcr Oll Ithe celinig of his dis.charge on August 25 On anoher
oiIrca.1onl he tesified thai this Va Ihc last da' he v. ,rked though he earlicr
ha(d tc tiillCd that ihc wi. illed hi;lk after dlcharge Iand id ork In Sp-
Ic,1m}, t pIrlllll C I ChiMlllci F l mll . ..s Rluct wd IIo p np g.l ()1 rhu-
tmd e c..ihcd thii the l il. dx he dromc .is on Spltcmbher 6 (L.abor );ii
11 C t/ ) .cill lcll m]cle m..i lc ie i do chlIrlci. vhich ic did
NATIONAL TRANSPORTATION SERVICE 571
the Company would know the situation and would not fire
him. The specialist provided him a note containing the
name of the doctor, clinic, and the telephone number for
the Employer to call. The note was subsequently delivered
by Jefferson to Respondent's front office for the attention
of Joseph Marcantel. Respondent's president and owner. s
Jefferson's testimony in regard to the service job offer by
Melson was that he was informed by Superintendent Rob-
ert Melson only that he would work less hours than he had
been working and at less pay. According to Jefferson he
frequently worked 20 hours a day. However. payroll rec-
ords kept by Melson for the last month of his employment
do not support that recollection.
With regard to supervisory conversations about the
Union, Jefferson testified that during the last week of June.
Superintendent Robert Melson called him into the office
and told him to have a seat and shut the door behind him.
Jefferson asked Melson what did he want to see him about.
Melson said he wanted to talk to Jefferson about this union
thing: and according to Jefferson said "I heard that Fred
Matthews and Ron Howard and Louella Jarrett had some-
thing to do with it, and he heard I Was trying to talk with
them on the Union." Jefferson denied knowing anything
about it. Melson told Jefferson on that occasion that by
that evening when he came off his run, Jefferson should tell
Melson who was involved with the Union. However, ac-
cording to Jefferson when he returned that afternoon. Mel-
son was not there.
According to Jefferson a second conversation with Mel-
son occurred which he placed in the middle of June or July
in the latter's office. On that occasion Melson told Jeffer-
son that he knew Jefferson had something to do with the
Union, about signing the card. Jefferson again said he had
nothing to do with it. According to Jefferson. Melson also
told him that if he would not tell Melson who was involved
with the Union and who was the leader of it, he did not
have a job. Jefferson also testified as to a third conversa-
tion concerning the Union which reportedly occurred on
August 25, the day he asserts he was discharged. Jefferson
recalled there was a drivers' meeting that morning and that
he talked to Mr. Marcantel prior to the meeting. Marcantel
stated to him that since he had been working with the
Company a long time and they knew each other. why
didn't Jefferson level with Marcantel about the Union. Jef-
ferson replied "I didn't know nothing about the Union."
Marcantel then said to Jefferson that he knew Melson had
talked to him about it. Jefferson replied he had talked to
Melson but he had not signed a card or said anything to
him about the Union. According to Jefferson. Marcantel
said he had a card with his name on it. Marcantel told him
that if he would tell Marcantel who was involved in the
Union, Marcantel would offer him a dollar increase and
raise him up to $4.25 per hour. At that point Marcantel
told Jefferson that it was time for the meeting and they left
and attended the meeting. After the meeting was over.
while employees were sitting around. Marcantel mentioned
to Jefferson that he wanted to see him when he got back to
the shop and Jefferson told him he would stop in. When
Jcfferonl) Added in hlli, :, h dslll I [1n 1'. ' ",it al l \ dCIic,,L.' \d Id I, k
%iil tell . i abouIl l,1l th in , I,. "r ,, slth lc-
Jefferson arrived. Marcantel told him he would be back in
a few minutes. However. Jefferson waited for about 2
hours. During the conversation that was eventually held.
according to Jefferson, Marcantel asked him if he wanted
to accept the dollar an hour to which Jefferson replied es.
but he did not know who was involved with the Union.
Marcantel told Jefferson that if he did not tell him who it
was he would fire them one by one. According to Jefferson.
Marcantel also mentioned the names of Fred Matthews.
Ron Howard, and Louella Jarrett. Jefferson told Marcan-
tel that if he wanted to he could go ahead and start with
him. According to Jefferson, Marcantel at that point told
him that he was fired, and told him to return Friday to pick
up his check. Jefferson testified he subsequently received a
call in September from Robert Melson to come in and do a
charter, which he did, and was then instructed to go out
and pump gas. As indicated whether Jefferson worked in
September or was discharged on August 25 is contested bs
Respondent. That Jefferson's own testimony in certain re-
spects thereon on the record was itself confusing has been
noted.
In attempted support of Jefferson's account. General
Counsel introduced the testimony of Addis Parham which
was to the effect that he observed Jefferson gas buses I day
which he recalled as being the day before September 9.
because on this day, Parham had an accident and he had
never seen Jefferson gas buses before. However Parham
also testified he had taken over the Douglasville commuter
route on the occasion of Jefferson's illness and recalled
that Jefferson had trained him on the route the day before.
On cross-examination. his testimony became less convinc-
ing in that he believed that he had observed Jefferson gas-
ing buses in the early part of the week in question, on a
Monday (Labor Day) although he did not recall it as being
Labor Day. Cross-examination also established that Par-
ham had been recently discharged for a reported conflict
of interest following a filing of an $800,000 lawsuit against
the Company. Parham further admitted that within a
month prior to the hearing, he had stated to other employ-
ees that he was going to put the Company out of business.
Although not the subject of the complaint allegations, but
urged and received as background. Parham also testified to
a similar conversation he allegedly had with supervision
concerning the Union in the month of June. According to
Parham. Marcantel told him in his office that he had heard
Parham was involved in the Union. Parham testified that
he pretended he did not know anything about it as the
Union was not ready to present itself. Marcantel told him
that he knew about the meetings that employees had held
in different areas, including parks and people's houses. and
asked if he was involved to which Parham had replied no.
According to Parham, he asked Marcantel if he was threat-
ening him and Marcantel replied he was not. Parham testi-
fied that the line of questioning was carrying him to believe
that if he did not give Marcantel the information he want-
ed that Marcantel would take some action against him.
According to Parham. Marcantel actually told him that he
could be fired, that Marcantel did not want a union in his
company and he would do anything to keep it out. Further
examination established that the first time Parham advised
the General Counsel of this conversation was at the da of
572 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD
hearing, though Parham asserted he had told Business
Agent Jones following his accident when he got out of the
hospital (thus sometime after September 9.)
Respondent presented the testimony of Dr. James Dun-
fee whose specialty was internal medicine but who was in-
volved in a residency training program in neurology at
Emery University during material times. The program in-
cluded service at Grady and V.A. hospitals. Dr. Dunfee's
period of service in the program was from July I to De-
cember 31. He was at Grady Hospital four times a month
plus being present at a nearby clinic every Wednesday.
Dr. Dunfee recalled seeing Adolphus Jefferson as a pa-
tient about the end of July. (I find that the weight of the
evidence is tha: he had seen Jefferson by Wednesday, July
28.) Dunfee recalled that Jefferson had been referred from
the Grady emergency room with a history of grand mal
seizures for which he had been initially put on Dilantin, a
regulating drug. The initially attending doctor had ordered
some tests and referred Jefferson to the neurology clinic.
Dr. Dunfee recalled that Jefferson had described incidents
that indicated Jefferson had had one or two episodes previ-
ously in his teens though Jefferson just described the spells.
Dunfee testified that on either a third or fourth visit, Mr.
Jefferson's wife had described similar spells as having oc-
curred in the early 70's. According to Dr. Dunfee, from
Jefferson's history and from the lab work that had been
ordered in the emergency room he concluded that Jeffer-
son was subject to grand mal seizures and was definite in
his testimony that he told Jefferson this the first time he
saw him. According to Dr. Dunfee he prescribed the addi-
tional drug Phenobarbital and refilled the Dilantin pre-
scription which had been started in the emergency room
explaining the former drug is a second level drug designed
to bring seizures under control if the first prescribed drug
did not appear to be succeeding. Dr. Dunfee also explained
that if Jefferson had a grand mal seizure he would lose
consciousness, and further testified that Jefferson was nev-
er well controlled on Dilantin or Dilantin and Phenobarbi-
tal. Dr. Dunfee's recollection was that he had not called
the Employer but rather Jefferson had asked how his Em-
ployer might contact him. He confirmed giving Jefferson a
note with the necessary information and requesting that
Jefferson have his Employer call him at that number Dr.
Dunfee recalled that it was after about the first week that
he had treated Jefferson that the Employer called him for
the first time. In the interim, Dr. Dunfee discussed the
patient's history with the head of the department who con-
curred that they could not let Jefferson continue to drive a
bus and that he should not drive a car. Dr. Dunfee testified
that on the occasion of initially speaking with the Em-
ployer about Jefferson he informed the manager (whose
name he could not recall) that Jefferson could not drive
because of his seizure disorder, that he could not drive a
bus and should not drive a car, but that he could do other
work. According to Dr. Dunfee, he also informed the Em-
"11mthvcver. Buslncs, Agent Jes testified cncralk tihat quite ;1 co' cmII
ployces including Pa'rhaml hd tld Imil l sI ut3 thc ('rlllp\ i ll hlc iCiiIllll
therm hccaus, of the I nll Ill i1 June lleC.lllg 1 is oled thal ,irli,'hnl'
tcotiniTlo doe nt upporit .Ionc, iI term,. of .l1vn hi- topoil 1o .iones. ,.
ployer that if the medication controlled Jefferson's seizures
and he was seizure free for 6 months then he could start
driving again, but that before that time it would not be safe
for him to drive. The closest that Dr. Dunfee could place
this initial conversation was on a Wednesday in early Au-
gust (the first Wednesday in August 1976 was August 4).
According to Dr. Dunfee, he recalled two additional com-
munications with the Employer. In either September or
October he was asked for a letter stating that Mr. Jefferson
could not drive. Dr. Dunfee recalled that by that time Jef-
ferson had told him that he had been fired. Dr. Dunfee
testified that he wrote such a letter and sent it to the Em-
ployer. In late October. he received another call from the
Employer who advised they had not received the letter and
requested another. As Dr. Dunfee was leaving the program
at the time and the case had been discussed with another
attending doctor, he suggested that they get any additional
letter from the latter. Dr. Dunfee recalled that the Em-
ployer informed him at the time that they had given Jeffer-
son a second job and that Jefferson had just not shown up.
Respondent's president and owner, Joseph N. Marcantel
testified that Jefferson had told him sometime earlier that
he was having some medical problems but that he did not
know exactly what they were. On that occasion Marcantel
told him to get the doctor's name and number and have the
doctor call him. Marcantel subsequently received a note
from Jefferson and testified that he placed the call to Dr.
Dunfee on Wednesday, August 4 at 8:30 a.m., at the Grady
Neurology Clinic. Dr. Dunfee told Marcantel that he had
seen Jefferson and was running brain scan tests; and that
Jefferson had had seizures that had gone back to 7 years of
age: and some others in 1971. Dunfee told Marcantel that
Jefferson's condition is such that he should not be driving
and asked didn't Marcantel have something else, a clerical
job or something Jefferson could do. Marcantel told Dr.
Dunfee that he really did not have anything for him at all
but he would have to make something. Marcantel asked
how long it would be. According to Marcantel in this ini-
tial conversation, Dr. Dunfee told him he really could not
say: but that there was no reason the man could not drive
once the medicine was regulated.i° According to Marcan-
tel, Dr. Dunfee did tell him that the medicine, until it was
regulated. was as dangerous as the seizures, as too little
would allow continued seizures and too much would cause
a blackout. On the same day, Marcantel had a meeting
with his superintendent of transportation, Robert Melson
and maintenance superintendent Ted Carpenter. Marcan-
tel informed Melson and Carpenter what he had been told
by the doctor, essentially that Jefferson should not be driv-
ing: that as soon as the medicine was regulated Jefferson
could return to driving and that he wanted Jefferson to
work in the service department with the same hours and
same pay. Marcantel testified that he in fact created a posi-
tion for Jefferson as he did not need anyone in service at
the time. According to Marcantel, Jefferson worked only I
day in service on August 9 and left.
Superintendent Melson confirmed that Jefferson at the
IM M.ll nlc. I usi. 1t l 1n l, lt the d ciot r a.t hat lilie hald stlted that
Icl Il ln had.l lI id ral eiZilr e, I rol his , nit ea.rlier personal experilelce
III dI l
x
II1C i 11 iln lhtl.,ll. ;11d Cll Uitlh ;InlLe. It UraI his understiandin
IliT cilld ti i itlrc., aslL epdilcpr.
NATIONAL TRANSPORTATION SERVICE 573
time was the driver of a commuter run from Douglasville
to Atlanta. He confirmed that Marcantel reported to him
that Jefferson was suffering with seizures which he had had
since childhood and that the doctor had advised against
Jefferson driving until his medication could be regulated as
he could have a seizure at any time. In their meeting. it was
decided that Jefferson would be transferred to service de-
partment until the medicine was regulated. He was to work
there with the same number of hours. 8 hours a day,. 5 days
per week and at the same rate of pay. According to Mel-
son, Jefferson last worked on his regular job on August 6.
Melson confirmed that Jefferson worked I day (August 9).
in the service department and did not report any more nor
did he call in to report absence. Melson introduced busi-
ness records (kept for payroll purposes) showing the hours
worked by Jefferson on commuter runs and charters dur-
ing this period. The records confirm that the last 2 days
Jefferson worked on both were on August 5 and 6 (Thurs-
day and Friday). During the period July 12 through Au-
gust 6, the record shows that the commuter runs Jefferson
worked were regularly 4 to 5 hours with the exception of
Wednesday, July 28, at which time it was 3.0 hours and
Friday, July 30, at which time it was 2.8 hours, thus indi-
cating that normal runs were not made on those days. Dur-
ing the same month's period of time. it shows that the total
number of hours worked rose from approximately 8-1,' 2
hours to approximately I I hours a day. The same record
also establishes that for the biweekly period for the weeks
of August 9 and August 16, Jefferson was paid 6.8 hours
for service and 2.0 hours on a charter. Melson explained
the latter charter payment as being due for one performed
in an earlier week though not paid which was not an un-
usual occurrence." The same period establishes that Jeffer-
son received $6.50 for attendance at a driver's meeting held
on August 25. Melson explained that Jefferson was called
to attend that annually held meeting in preparation of the
commencement of the school year because he was still con-
sidered an employee though not active. According to Mel-
son on the same day that he learned that Jefferson was
suffering with epileptic seizures, he was taken off the run.
However he confirms that on August 5 and 6 Jefferson
taught the route to Parham who was assigned to take over
the run.
Marcantel also testified that he had a second conversa-
tion on the following Wednesday (August I) with Dr.
Dunfee to obtain a clearer idea of how long Jefferson
would not be able to drive. Dr. Dunfee advised Marcantel
on that occasion that it usually took 30 to 60 days to make
sure that the dosage was right. Marcantel had a third con-
versation with Dr. Dunfee on either August 18 or 25. He
explained his reason for making this call was that he was
concerned about Jefferson. The Company had recently re-
ceived a call from a Congressman's office concerning a
complaint by Jefferson that the Compan) would not give
him workmen's compensation forms. On that occasion
Marcantel called Dr. Dunfee to see if Jefferson's illness
was work related as Dr. Dunfee had earlier indicated it
litt eicir 11I I ,ted lat Iecffelioll Iu i dc.,ribcd oii one t.i ,,al l 1l1lt
iafter tic had Iniall. i eenl heliId off h is icA.lla r ill iev Ih .kii I'k d.,
chirler hcfore prformilp crx itc ,,rk
stemmed from childhood. e wanted to know wh, Jeffer-
son would do the above and if Dr. Dunfee could shed some
light. According to Marcantel, Dr. Dunfee related they had
been having some problems with Jefferson and had sent
him to a social worker for some reason that he did not
elaborate on: though he indicated the Company was prob-
ably getting part of that. Marcantel inquired should he give
him the forms and Dr. Dunfee replied to do so if it made
Jefferson happy but that he did not have a work related
problem and it would not do him any good.' 2 Marcantel
inquired whether or not the head injury of a year ago could
be the cause and Dunfee told him that was not his problem
since Jefferson had episodes earlier.
Melson confirmed there was a call from a
Congressman's office over Jefferson attempting to get
some workmen's compensation claim forms and a com-
plaint that the Company had refused to give the forms to
Jefferson. According to Melson he advised the caller to
have Jefferson come over to his office and he would give
him the forms. (Melson did not deny the reported testi-
mony of Jefferson that when Jefferson made an inquiry of
him about workmen's compensation being applicable that
Melson had emphatically replied it was not.)
Maintenance Superintendent Carpenter essentially cor-
roborated both Marcantel and Melson. Additionally, Car-
penter testified that he had had Jefferson work in the ser-
vice department on August 9 (Monday) and had started
Jefferson on punching a timecard. Respondent produced
the timecard which shows that Jefferson punched in on
August 9 at 6:34 a.m. and worked until 1:25 p.m., for 6.8
hours. Carpenter testified that it is about 6:30 a.m. that the
units begin to roll out. He did not have a conversation with
Jefferson on that day as to what Jefferson's duties were to
be as Marcantel had told him that had already been taken
care of: and because frankly, service really did not need
Jefferson at all. The position was just being made for him.
The decision had been made by Marcantel and Carpenter's
opinion was not sought on it. However, Carpenter did ask
Marcantel how many hours Jefferson was to work and was
instructed b Marcantel that Jefferson was to work 8 hours
a day without pay change (thus at a rate higher than other
service personnel). Carpenter also testified that in the con-
versation he had with Marcantel and Melson in the week
before. he was told that they had to do what they had to
do. and they had to do it relatively soon because of
Jefferson's physical condition. Carpenter testified that Jef-
ferson did not run a charter that day although I note
Carpenter's other testimony that he does not usually report
for work until 7 o'clock.
Marcantel testified that he did see Jefferson at the driv-
ers' meeting on August 25 (thus probably after his third
call to Dr. Dunfee). After the meeting he spoke to Jeffer-
son and asked what he had been doing and Jefferson said
that he was trying to get himself together. Marcantel told
Jefferson at that time "You're going to have to swallow
your pride, ou've got to be working, you can't make it if
you don't work." "I told you we ould take care of you
I Ic ro . I , t I .JII forl I I.it I.,dtc L1iiI fo.r iitcniIplo\ ullenL htic-
it d Jl el lt.d edlle ie d ell l .J JO ~,!11~ L t 21 hI ad ptll Lied . I. I lfkl llll llelI
l ii II ivc [ i. .mllc c D)etc tiel lie ld rcclxcd IotaI., dl.hi l, bhetiefits
rdel , -ctii . tcilrll p\1'r ,II
574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and we will." Richard Browning, an employee who regu-
larly drives a bus but who (along with two others) has some
on-the-road supervisory responsibilities over all other driv-
ers, viz, to insure that drivers remain on their route, testified
that he was present at that drivers' meeting and had ob-
served Marcantel come out of the meeting with his arm
around Jefferson's shoulders. Browning overheard Marcan-
tel say, "You don't worry about driving, because we got a
job for you. we're going to take care of you." Browning
observed that Jefferson had tears in his eyes. Browning
related that it was common knowledge in the shop at the
time that Jefferson had seizures and was very sick. Signifi-
cantly. Browning had never heard that Jefferson had been
fired. Maintenance Superintendent Carpenter testified that
he observed several employees standing on the steps of the
elementary school where the drivers' meeting was held and
that he asked Jefferson on that occasion why he had not
worked in the service department any more and asked him
to come back. Carpenter told Jefferson he knew he had
some problems but that he would work with him until he
got them worked out. Carpenter also testified that Jeffer-
son was visibly upset at the time.
Melson testified that on September 9 Jefferson came in
to get certain insurance claim forms filled out. On that
occasion he also inquired why Jefferson had not been
working. According to Melson, Jefferson told him at that
time, "He was not going to work in service department for
a year when he could be driving." Marcantel testified that
he last saw Jefferson on the occasion when Jefferson came
into the office about the end of September or early Octo-
ber. According to Marcantel, Jefferson came in about 9 to
9:30 a.m. and was upset, saying he wanted to drive a bus
and felt he was being deprived of it. According to Marcan-
tel, Jefferson on that occasion stated that he had never had
a job in which he felt important but that he really liked
being a busdriver and felt he was cut out to do it and that
if he could not drive he was not going to do anything.
Marcantel tried to assure Jefferson that he would just be
biding his time (if he returned to work) and that he would
be able to drive again: but Jefferson replied. "No I'll drive
right now or I'm not going to drive at all."
Marcantel testified that Jefferson has never been fired:
that no termination paper has ever been made out for him
as is required by law on discharge: that he was always
considered a driver temporarily transferred to another de-
partment; that his classification and seniority is still as a
driver on leave of absence in another department: and that
his name still comes out on a computer printout of employ-
ees. Marcantel also specifically denied ever having any dis-
cussion about a labor organization with Jefferson and de-
nied that he had ever made any promise of a wage increase
if Jefferson would report any information concerning the
labor union to him. He further denied making any threat to
fire Jefferson for failure to provide such information, either
on August 25 or any other date. Melson also denied ever
discussing the Union with Jefferson either interrogating
him about a union or who was involved with the Union or
as to any information concerning anyone involved in the
Union.
Jefferson called on rebuttal testified that he actually per-
formed as a driver on his route on his last 2 days (Thursday
and Friday) August 5 and 6 and that the Company was
aware that he drove. Additionally, he testified that he
drove alone the charter trips in the afternoon of those days.
He testified also that he took a charter out on the following
Monday from a hotel to the airport and that when he re-
turned Melson gave him a timecard to clock in. He also
testified that he had not ever been told by Dr. Dunfee
specifically that if he had a seizure while driving, uncon-
sciousness was possible. Significantly, Jefferson did not
deny the job offer conversations testified to by Mr. Mar-
cantel. Parham called on rebuttal confirmed that Jefferson
did the driving while he was being trained on the route and
that he did not drive with him on the charters on those
days. However, Parham's testimony significantly revealed
that it was his understanding even at that time that the
reason why he was taking over Jefferson's regular route
was because Jefferson was epileptic.
Contentions of the parties
It appears that General Counsel's Position is in view of
all the evidence that Jefferson was constructively dis-
charged when he was taken off of his route and assigned
menial duties servicing buses at less pay and less hours.
The Respondent contends that it is abundantly clear from
the record that Jefferson suffered an unfortunate illness
which limited his ability to drive a vehicle and has im-
paired both his memory and his best intentions. Respon-
dent asserts it made every effort to accommodate Jefferson
to preserve his job security and sensitivity at an earlier
point in time and that these efforts to assist him were not
recognized for the good intentions they represented.
Analysis, conclusions, and findings
The testimony of the Company's witnesses was clear,
consistent, and mutually corroborative. In addition to
being plausible, that testimony was supported by company
records kept in normal course of business. Its position
found substantial and independent support in the disinter-
ested testimony of the attending specialist, Dr. Dunfee. It
is clear beyond question, and I find, that Jefferson, during
the months of June and July, was visited with a malady
subsequently identified as grand mal seizures, which occa-
sioned his doctor's recommendation on or about August 4
and the Company's acquiescence in that determination
that Jefferson should not be allowed to drive a bus until
such time as his seizures could be brought under control by
regulated medicine. Without again summarizing all of the
evidence aforesaid it is clear and I find that what is por-
trayed herein is a case of an individual who had found his
niche in life with strong motivation to be a busdriver and
who, because of unfortunate intervening illness, was frus-
trated in being prevented by his illness from doing so. In
my view whether the Employer did or did not allow Jeffer-
son to do any driving for a short period after learning that
he was subject to dangerous seizures is not the controlling
point in this matter. The conclusion which seems inescapa-
ble from the foregoing facts is that for the safety of himself
and others, who would be passengers on buses, Jefferson
had to be removed from his driver responsibilities at least
NATIONAL TRANSPORTATION SERVICE 575
temporarily while his illness was treated. The evidence is
equally clear and convincing that Respondent made effort
to continue Jefferson in its employ. I thus conclude and
find that General Counsel's contentions that the evidence
shows that Jefferson was constructively or discriminatorily
discharged on or about August 25 is wholly unconvincing.
I shall accordingly recommend that the related 8(a)(3) and
(I) complaint allegations be dismissed.
With regard to the other allegations of 8(a)( I) interroga-
tions, promises of benefit etc., as testified to by Jefferson I
have earlier noted that those incidents described in the sec-
ond conversation attributed to Melson and particularly the
conversation attributed to Marcantel were tainted with
leading questions, while I have noted that some leading
was primarily as to time of occurrence and in the main
without objection, it is nonetheless clear that Jefferson's
recollections of this period of time, and particularly as to
the conversation allegedly held with Marcantel were in its
major elements confused not only as to time but as to cir-
cumstances attendant to the event. Thus as of August 9.
the last day that Jefferson actually worked for Respondent.
apart from his paid attendance at a drivers' meeting on
August 25 (which only supports Respondent's contention
that Jefferson was not discharged) Respondent had been
required to temporarily relieve Jefferson of his regular
driver duties because of the nature of Jefferson's illness.
Incontrovertibly Jefferson's seizure illness was serious, and
likely to have been at least generally known by Jefferson at
the time as it was to other employees. though not presently
so recalled by Jefferson. The fact is that Respondent at
that time made other work for Jefferson, which Jefferson,
for his own reasons and in his condition found unaccept-
able and rejected by leaving the job. Nonetheless. Respon-
dent for its part repeatedly and publicly encouraged Jeffer-
son to return to the job it had created solely for him. Such
conduct is incongruous with the concurrent alleged threats
by Respondent to discharge Jefferson either on or about
August 9 or later on August 25; and seemingly so to the
point of rendering a likelihood that such conversation as
ever having occurred, simply implausible. In contrast, the
testimony of Respondent's witnesses in denial of same was
clear. More significantly, such denial was persuasive in its
consistency with Respondent's other visible conduct to-
ward Jefferson. Finally I can detect no reason in their testi-
mony, demeanor nor in the totality of the evidence pre-
sented before me to discredit Respondent's witnesses. In
contrast, even making some allowance for the unintention-
al effect of Jefferson's illness on his memory, the fact re-
mains there is evidenced in his account a not insubstantial
distorted recollection of the events of that period. I neces-
sarily conclude and find that Jefferson's testimony in sig-
nificant degree was clearly unreliable in regard to certain
of the alleged conversations he had with his superiors, par-
ticularly observed so in regard to that with Mr. Marcantel.
Having thus determined that Jefferson's testimony was
shown to be unreliable in part to a substantial degree, in
the absence of some convincing corroborative testimony as
to the other alleged conversations. I further conclude and
find that General Counsel's proof in support of same is
weakened and has likewise failed to either convince me or
to preponderate under the circumstances. Accordingly I
shall recommend that these allegations be dismissed in
their entirety as well.
4. The issue of exempt or nonexempt status of alleged
discriminatees Ronald Hall and Fred D. Matthews. Jr.
Ronald Hall was hired in July 1974 and worked for Re-
spondent for approximately 2 years as a part-time service
employee in its maintenance department. Hall's responsi-
bilities were at the time apparently generally limited to
gassing buses, cleaning buses and checking oil. On Septem-
ber 7. Hlall was promoted to a mechanic trainee status with
full employment but placed on probation for 90 days. He
was assigned responsibilities in Respondent's preventive
maintenance program. This promotional opportunity was
made available to Hall by maintenance superintendent
Ted Carpenter. Although he made the job opportunity
available to Hall, Carpenter considered that Hall did not
have the necessary experience to be a mechanic trainee.
Accordingly Carpenter gave Hall time to reflect on accept-
ing the position: and on Hall's acceptance subsequently
Carpenter provided Hall with some on-the-job training. as
did some of the other mechanics. Carpenter additionally
made out a checklist of duties that Hall was to follow.?3
The list was subsequently generally adopted and put in use
for all service personnel. Hall confirmed that he regularly
worked on all of Respondent's yellow and black school
buses and four other transit buses which he described as
"blue birds" or flat face city buses and GM diesels. Hall's
responsibilities also included running errands for parts as
required. All but 4 of Respondent's approximately 99 buses
were school buses used primarily in the group transport of
children to and from public school and related activities
for the Atlanta, Georgia, Board of Education and other
regional school systems. All but 4 of Respondent's approxi-
mately 125 drivers regularly and primarily drove school
buses. There was no evidence that any of the school buses
were used exclusively for charter service. All the buses re-
ceive periodic maintenance service, usually monthly. It
necessarily follows that a very high percentage of Hall's
time was regularly spent on preventive maintenance assign-
ments on school buses.
Fred D. Matthews, Jr., is clearly evidenced in the record
to be primarily a school bus driver. His responsibilities
were to drive daily a school route, two trips a day, in the
morning and the afternoon. Matthews also drove charters,
sometimes for a Board of Education, sometimes for private
businesses. Matthews testified that when school was closed
drivers rotated on charter assignments. He would receive
about two a week; however, he testified that most of the
summer charters were with parks and recreational activi-
ties and involved the transport of students and children to
those facilities.
As noted earlier the Board has held that bus transporta-
I lie i dline.atcd tie ccral ;lreaI u, to I hich flup I i,o xcrc to he
chckcJ.: pIl-xidcd fo rlc of 111 eanerr;1d uh ,,f Ihc £l;hl checsk of
.t .1,ll. 11,.ttl;tIll .,1 of '.1tC CI. IlgIhlCll_ , .1 f l t holl 1 feIl ,ItC[ in
IcCrlln Ilidcr,.llrl.lc: Ill .llt,ttll do IIIInLe. iN d 1;Lilthc,: lrcr.l il dlC .-
trl.ll xin11i, w t1} ,lCltllurc.il : .ln ;t11iin dr,.cr i oid. Slo nn idn<> wd iih mih-
( Ic. hin,,ln in1c ,11 ,nil filter ii, direc tl
576 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
tion for public school children is intimately related to pub-
lic education, an exempt governmental function and em-
ployers who perform such functions for public school au-
thorities are exempt from the Act. Accordingly, in the
earlier related representation matter, the Board has de-
clined jurisdiction over Respondent's operations insofar as
they involved the transportation of public school children.
The Board has further specifically found that all of
Respondent's school busdrivers were engaged principally
in exempt charter work for the public school systems and
do nonexempt private charter work only on an occasional
and irregular basis. The Board accordingly excluded such
drivers from the unit. The evidence presented in the record
made before mie supports and continues to warrant the
conclusion that Matthews at all material times was princi-
pally a school busdriver and as s:lch. was one of the ex-
empt employees under the Board's prior holding. I so
find.'4 However as earlier noted the Board made no deter-
minations with regard to the exempt-nonexempt status of
mechanics, service personnel. or helpers.
The complaint alleges that Respondent discharged and
thereafter failed and refused to reinstate Fred Matthews
and Ronald Hall on October 20: and that the said dis-
charges were discriminatorily motivated and constituted
unfair labor practices affecting commerce within the mean-
ing of Section 8(a)(3) and (1) of the Act. The complaint
alleged some additional conduct directed at these employ-
ees as violative of Section 8(a)(1) of the Act. At hearing I
expressed being troubled by the issue of whether there
might be a violation of the Act should the evidence warrant
conclusion that certain exempt (particularly dual function)
employees were discharged while engaged in concerted ac-
tivity with other nonexempt employees who were protected
by the statute in that concerted activity. General Counsel
in his brief simply contends that both Hall and Matthews
were regularly and sufficiently engaged in duties which
would not fall under the exemption standard assuming
adoption of the Regional Director's decision and thus con-
tends both are not exempt employees. Respondent contra-
contends that both Hall and Matthews are exempt employ-
ees as Matthews is an exempt school busdriver and Hall
was principally working on preventive maintenance of
school buses. Respondent has also addressed itself to the
question raised at hearing and contends that the basic issue
is presented and resolved by the Board in Waukegan-North
Chicago Transit Company, 225 NLRB 833 (1976). There.
Respondent notes, the Board dismissed all complaint alle-
gations involving interrogations and discriminatory dis-
charge of "exempt" employees who worked for a company
which also employed "nonexempt" employees. Respon-
dent points out that it was only when the illegal conduct
had direct application to both "exempt" and "nonexempt"
employees (an invalid no-solicitation rule in that case)
that a violation was sustained.
Preliminary issues for resolution would thus appear to be
whether the nature of Hall's employment was such as to
warrant the conclusion that he is an exempt employee; and
if so, whether the Board's holding in the "Waukegan" case
14 4' allonal~ l'ralpwrilttt ... Srv/(t.. J . ipffltlt
is to be concluded as dispositive of all complaint allega-
tions relating to Respondent's conduct directed at Hall and
Matthews with the result such complaint allegations must
be dismissed: and if not what issues remain for determina-
tion.
In the earlier related representation matter, in agreement
with the parties. the Board has found an appropriate unit
which included all full-time and regular part-time drivers.
mechanics, service employees, and helpers employed by
Respondent in the unit. However, as noted, the Board has
already viewed Respondent's operations and concluded its
operation of providing bus transportation for public school
children was intimately related to public education, an ex-
empt governmental function, and declined jurisdiction
over the Employer's operations insofar as they involved the
transportation of public school children: further concluded
that the school bus drivers are engaged principally in ex-
empt public charter work for public school systems and do
nonexempt private charter work only on an occasional and
irregular basis and consequently excluded them from the
unit. 5 As to the mechanics, service employees, and helpers,
the Board found the evidence totally inadequate for the
purposes of either determining which employees perform a
sufficient amount of nonexempt work or constructing an
applicable standard therefor which is more specific than
the one set forth by the Regional Director as set forth in
the Board's holding on dual function employees in Berea
Publishing Company, 140 NLRB 516, 519 (1963)) 6 It thus
appears that essentially the test for determination of Hall's
status in large measure is to be determined by whether he
spends a "sufficient" period of time on nonexempt work,
which under the cited Berea case holding need not be his
preponderate work interest any more than is required of
regular part-time employees. Neither the parties' briefs nor
my own research has led to more definitive authority in the
public-private charter bus field. However, the test does re-
quire sufficient work time support for the conclusion of a
substantial community of interest with unit employees. In
its treatment of dual function agricultural employees, the
Board has excluded dual function employees as exempt
agricultural employees, if the latter's nonagricultural work
is "too small a percentage" of their annual total work time,
Light's Tree Company, 194 NLRB 229, 230 (1971), citing
N.L.R.B. v. Kelly Brothers Nurseries, Inc., 341 F.2d 433 (2d
Cir. 1965). In the latter case the court, in disagreeing with
the Board's earlier conclusion that certain dual function
employees were not exempt, concluded and held that such
employees were realistically in the main performing ex-
empt work 7 and thus exempt from the Act. Superinten-
' Ntlai,n / ,l latrloaln Sia 'l/ I .l 231 Nlt.RB 980 (1977). citing
R, l /h I./m'. h In. 224 N .RB 203() 1976)
Ihe Regiionlall [)irecor included Ill such emplosee who perform non-
cxenpt dunlle "for sufficient period, of time to demlontrite that the
h.i Ic ia uhstiantil cOnllmunll t of interest in the unit's working condi-
n oh - ,I eltillCl; ted for duLl unction eplof cs
pp.rcnil ill the court's xmew ceritain of te emplo cee, performed ex-
elpt Irk o,er M) percent of the inne The Board itself has excluded fronm
u1111 a isop crv : hlch slpent 0 percent f its time mainltinin g equipment
iced h,, ecklllpt elnplo ecs "cIe;inlng. repairing and construtllng the
I p ll i. lo c ,, steil of at era,,, in farmring perationil although regard-
iln the I.>iic .a heconn g ciloe h, irtue o the rem ningi 2t) percent of their
II111C s1pc ll O IIt n Illliltg equipment used h noneenmpl emploee,
le,, ( , t, l h Ior llr, l I)r,ii 164 NLRB 11 76 1177(1967}
NATIONAL RANSPORTATION SERVICE 577
dent Carpenter estimated that Hall's exempt work amount-
ed to 95 perccent. Fair conclusion to that effect is
warranted from the facts of record that Hall regularly did
bus preventive maintenance on all of Respondent's ap-
proximate 99 buses, only 4 of which are predominantly
used in nonexempt private charter work, even making al-
lowance for his additional duty of running errands (on a
proportionate basis) and other nonexempt work factors.' 8
The conclusion seems inescapable that Hall's work was pri-
marily and realistically incidental to work determined to be
exempt by the Board and consequently itself exempt. It
appears, and I find, that Hall is primarily engaged in ex-
empt work and is excluded from the unit as an exempt
employee. I next turn to Respondent's contention that in-
asmuch as both Hall and Matthews are exempt employees
the complaint allegations insofar as they relate to Hall and
Matthews should be dismissed.
In support of its contention that the complaint allega-
tions as to Hall and Matthews should be dismissed the
Respondent has cited WHauAcRan-North ('hicaw o Iran.lit
(onzpan 225 NLRB 833 (1976). In that case the Adminis-
trative Law Judge found that the Respondent had discrimi-
natoril) discharged two school busdrivers in violation of
Section 8(aH3) and (I). On review, however, the Board sim-
ilarly concluded, as in the earlier representation matter re-
lated herein. "that the Respondent's school bus operation.
operates primarily in aid of local communities and of the
state in the field of education and is so intimately related to
the school district's function as to warrant finding that its
operation is in effect a municipal function." The Board
went on to dismiss the complaint "insofar as it alleges un-
lawful conduct directed against employees of Respondent's
school bus operation." The Board thereupon dismissed the
8(a)(I) and (3) allegations relating to the discriminator!
discharge of the two school busdrivers and also an 8(a)( I)
allegation as to interrogation of one of the same. However.
it is noteworthy that where the conduct of the mploer
extended in effect an overly broad no-solicitation rule to
encompass all drivers and was not confined to school bus-
drivers, the violation of the Act as found b the Adminis-
tratie Law Judge was upheld by the Board. Hlowever. it
appears the Board left undisturbed discriminator! unfair
labor practice findings by the Administrative Law Judge as
to two employees who worked as bus mechanics on transit
and school buses. Significantly however, the mechanics
were part of a unit apparently recognized b' Respondent
(,nsidcratl in if tc prpori n o f r , re.ctltic, frui i [ull{IC t hIlltr
in rclalt ln t) puhlih ch.irir h ta m r¢,cntlue, u.,uld not ffcal .i llld II
pcrccnLigc hc.oird hiT ftilII d Inrld Ic t tC iL l A /I t,. II ti l i t/ ,
{l lltllllnct.i C if hu'\c pr.i t'Cd h x Citl.la l of 11 le t ,.it l \I r CI ti,.liijd ,/II
I nti.rac Ihe hl high prcicnt.lag
In hat caisc, ni til, ti. tic ,i\drilllhimi. c I u .iItdc 1,td lt,tl 1 h i ,t I
employer hid w1ol.lclJ Se t.uil 1) h rcflllnt t0 Iciltr.ll i,ic ril itkcl .lid
for 25 years and it did not appear to what extent the me-
chanics had subsequently performed work on the school
buses. In the instant matter the Board has clearly indicated
that the extent to which the mechanics and service person-
nel are engaged in nonexempt work is to be the controlling
factor. National Transportation Service. Inc., 231 NLRB
980. 981 (1977). See also R. & E. Transit, St. Louis. aI Dii-
wion of American Transit, Inc.. 229 NLRB 959 (1977). ' In
remanding the latter case to the Administrative Law Judge,
the Board noted that there was no evidence regarding gross
income deri'.ed from nonexempt business. nor the amount
of time the employees (who were the subject of complalin
allegations and findings) spent performing work related to
the latter. It thus appears reasonably clear that the Board
will require, in addition to its jurisdictional revenue consid-
eration being met. that the Respondent's conduct as re-
lated in the complaint allegations be directed at emplo \-
ee(s) who qualify as protected employee(s) by lrtue of
sufficient nonexempt work performance. I he same appears
to be in basic accord with the holding of I.. R.B. . A. Kcll
Brolhers Nlrvcrl, spra.l `' Accordingly I conclude and find
that the complaint allegations of Section 8(a)(3) and (I)
insofar as theN alleged conduct of Respondent directed at
exempt employees Ronald Hall and Fred [). Matthews
must be dismissed as conduct to which, under applicable
Board precedent, the Board's jurisdiction does not lie.
Iail/XIIgon-\orth (ChicagIS Transit (otnpar, 225 N RB
833 R E Transit, St. I.oui .4 Dirswion ,of .,4mericlm
Transit, nc. :229 NLRB 954; and National lran.sportation
Serric. Inc.. 231 NLRB 980. I shall. accordingly. recom-
mend that those allegations be dismissed.
(CoN( t SIt)NS () Lw
I. Respondent. insofar as its operations insol\e the
transportation of public school children, or are incidental
thereto, is an emplo yer exempt from the Act.
2. Respondent. insofar as its remaining operations do
not in,olve tile ransportation of public school children or
are not incidental thereto. is an employer engaged in com-
merce within the meaning of the Act.
3. The lnion s a labor organization within the meaning
of the Act.
4. The TEmployer has not committed an, unfair labor
practices in violation of Section 8(al( I) and ( 3) as alleged in
Se, S(.I)( I } x Iiicrrl.u.lt, il .s. iitc11.lirit t11c i tlher .1llpl .cc I c i, - tdl
I II 2l1 l ct I llu , i[I, ¢ p,.lj, c v..,'> IItlll tt(dtll II C' l'c ft ftc IhC [ lo'll
p.h1, t ] hih [Y cieC hcnpt frui tSc ct 'x ttJ fAlu c nd it t hui fm p.1t-
,, ~ I hot , 'I ncx pi/1l, %,il ctqllll l lr o
I Ihclc iJllc^ I r 1ill .E tc. l 4411 wC IlIInk hc BH,.,ld ll.i prperil.
et ll.' II.cI tkll . 1,IIII1 t.. tk it t , l i.li -iN lc pClttl ., Ei . fiuti i 1 the
cll lh'\ c1 111, xg l.l 1O l s ,ifld e , II .[1, iI'1 ] 1 ii cr. io Kcll
Brothers' - lttcltw, rl Att l 'lll .I.-till i t .1til 1ll'[ ihtc rliplolbl cr h intll-
IllllC d ,1 1 Ill III .1i , l ' ' ''c' i l I C.rl ti.c In lII .E1 ltC or lI IIHli ic
t.
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578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the complaint directed at nonexempt employee Adolphus
Jefferson.
5. As to all other 8(a)(1) and (3) allegations of the com-
plaint directed at exempt employees Ronald Hall and Fred
D. Matthews under applicable Board precedent the
Board's jurisdiction does not lie.
Upon the foregoing findings of fact, conclusions of law,
upon the entire record and pursuant to Section 10(c) of the
Act. I make the following recommended:
ORDER 21
The complaint is hereby dismissed in its entirety.
' In the event no eceplon, are filed .a, pro ided h Sec 11)2.46( ol Ihc
Rules and Regulations of the atiinal I.ahbor Relations Board. he firdilcn.
conclusions. and recommended Order herein hall. as proildcd ill Sec
102.48 of he Rules iid Regumlti(ron. he dopted y the Board and become
it, findings. conclusions. .anid Order. ad all ohbjections thereto hall be
deemted i is ed for adl purposes