We Transport, Inc., and Towne Bus Corp.

National Labor Relations Board - Board DecisionsFeb 15, 1979

240 N.L.R.B. 755 (N.L.R.B. 1979)

WE TRANSPORT. INC. AND TOWNE BUS CORP. 755 We Transport, Inc. and Towne Bus Corp. and Local 707, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, Petitioner. Case 29-RC4171 February 15. 1979 DECISION ON REVIEW, ORDER, AND DIRECTION OF ELECTION BY CHAIRMAN FANNING AND) MiMBI-RS JFNKINS AN) PNIL lI o Upon a petition duly filed under Section 9(c) of the National Labor Relations Act. as amended. a hearing was held on May 2, 1978. before Hearing Officer Steven Goodman. On May 19. 1978, the Re- gional Director for Reglon 28 issued a Decision and Direction of Election in which he found that all full- time and regular part-time busdrivers who are regu- larly engaged in providing private, nonpublic school related bus services and all mechanics employed by the Employer at its Hicksville and Bayshore loca- tions, excluding all other employees, public school busdrivers, matrons. office clerical employees. guards and supervisors as defined in the Act. constitute a unit appropriate for collective bargaining within the meaning of Section 9(b) of the Act. Thereafter. in accordance with Section 102.67 of the National La- bor Relations Board's Rules and Regulations. Series 8, as amended, the Employer filed a request for re- view of the Regional Director's decision. In its request for review the Employer contends that the Regional Director erred in excluding from the unit drivers who provide bus service to public schools and the matron who works on the public school bus runs. The Employer asserts that in a prior case involving its operations.' the Board determined the appropriate unit should include all of the Em- ployer's drivers. The Employer also notes that the Board has recently asserted jurisdiction over em- ployers engaged in Head Start programs, finding that the important factor is control of labor relations poli- cies and not whether employers act in aid of the State. The Employer submits that there can be no doubt it controls its labor relations policies and that, therefore, the appropriate unit should include those drivers providing public school bus service and the matron. By order dated June 16, 1978. the Board granted the Employer's request for review. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- I 14, Tranmprt, Inr and i n Bu (a,rp. 215 N RB 497 (1974) 240 NLRB No. 111 tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the entire record in the case with respect to the issues under review. includ- ing the request for review filed by the Employer, and makes the following findings: The Employer. a New York corporation, provides bus services. including bus transportation for public and private schools. The Petitioner seeks to represent all of the Employer's full-time and regular part-time busdrivers. matrons, and mechanics employed at the Employer's Bayshore and Hicksville locations. The Employer and Petitioner agree that the appropriate unit should consist of all the Employer's employees in these classifications at the two locations.' In making his unit determination. the Regional Di- rector relied on our decisions in (Colnhiba Transit Corporlation, 226 NLRB 812 (1976), and Camprown Bus Lines, Inc., 226 NLRB 4 (1976). In those cases the Board declined to assert jurisdiction over the em- ployers' school district related bus service because that part of the employers' operation was found to be so intimately related to the school districts' function as to warrant a conclusion that such services are, in effect, a municipal function. The Board. however. has recently abandoned the so-called intimate-con- nection test and has stated that the proper focus of inquir\ is whether the employer retains sufficient control over its employees' terms and conditions of employment so as to be capable of effective bargain- ing. The record here contains no evidence that the school districts control the Employer's labor rela- tions policies. Nor. indeed, is there any evidence that the Employer's operation has changed in any legally significant way since our prior decision directing an election in a unit including both drivers engaged in public-school service and drivers engaged in private service. Therefore, we conclude, contrary to the Re- gional Director. that a unit consisting of all employ- ees, including those busdrivers and matrons provid- ing service to public schools. constitutes an appropriate unit for bargaining, and we shall direct an election therein. We find that the following is an appropriate unit for collective bargaining within the meaning of Section 9(b): All regular full-time and regular part-time bus- drivers, mechanics, and matrons employed by the Employer at its Hicksville and Bayshore lo- cations: excluding all other employees. office he Peitilner riginall petliltrned to represenlt on! the emplok ecs at the Flnpliser', Bashore lmail n Ait he hearing he Petionler amended its petilrn ,, include he emploxees at the Ilicksille site the Imploser did not ppose the amendmenti. hul requested that the oard inestlgate the adequacl. of the Petitl ner', hotu Ilg of interest lafter the BoaHrd determines the appropriale unit ISee \tai nl Iranprfloiroal . i uc. i/n,. 241) NlRB 565 11979). 756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD clerical employees, guards, and supervisors as defined in the Act. On May 19, 1978, the Regional Director for Re- gion 29 issued a Decision and Direction of Election in which he found appropriate a unit for collective bargaining which was different from the unit origi- nally sought by the Petitioner in a petition filed on April 10, 1978. The Regional Director conditioned the Direction of Election upon the Petitioner's dem- onstrating within 10 days from the date of the Deci- sion that it had an adequate showing of interest in the unit found appropriate. Because the Petitioner did not demonstrate an adequate showing of interest, the Regional Director, on June 2, 1978, dismissed the Pettioner's petition. The Board, having reviewed the Regional Director's Decision and Direction of Election, has found appropriate a unit different from that defined in the Regional Director's Decision and Direction of Election. ORDER It is hereby ordered that the Petitioner's petition filed on April 10, 1978, be, and it hereby is, rein- stated .4 [Direction of Election and Excelsior footnote omit- ted from publication.] MEMBER PENELLO, dissenting: I would not assert jurisdiction herein for the rea- sons set forth in my dissent in We Transport, Inc., 215 NLRB 497 (1974), as well as for the reasons giv- en in the dissenting opinion in National Transporta- tion Service, Inc., 240 NLRB 565 (1979). 4 Inasmuch as the Petitioner amended its petition at the hearing to in- clude the employees at the Employer's Hicksville location, we direct the Petitioner to demonstrate an adequate showing of interest in the amended appropriate unit, if the Petitioner has not already done so, within 10 days from the date of this Order. Failure to submit a sufficient showing of inter- est within 10 days will result in dismissal of the petition.