Columbia Transit Corp.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Columbia Transit Corporation, Employer-Petitioner and Amalgamated Transit Union, AFL-CIO-CLC. Case 18-RM-956 August 18, 1977 ORDER DENYING MOTION On November 8, 1976, the Board issued its decision in this matter in which it declined jurisdiction over 96 percent of the operations of the Employer- Petitioner, hereinafter referred to as the Employer, involving school district related bus services, but asserted jurisdiction over the remaining 4 percent of the Employer's operations only insofar as they involve nonschool district related bus services. The Board found that the appropriate unit included: All school bus drivers and yard workers employed by the Employer at the Arden Hills and St. Paul school bus terminals who are engaged in provid- ing nonschool district-related bus services; but excluding all other employees, professional em- ployees, guards and supervisors as defined in the Act. Thereafter, on November 16, 1976, the Employer filed its motion to reopen record and remand matter for further proceedings, contending changed circum- stances subsequent to the close of the hearing including the expansion of its contract with the Minneapolis school district and the acquisition of 100 additional schoolbus routes; the purchase of 103 buses, vans, garage equipment, and the hiring of 80 new employees; and the acquisition of a third terminal which the Employer leased at Minnetonka, require that the Board take further evidence and broaden the unit. The Union opposed the Employer's motion on grounds that the Employer was merely engaging in a delaying tactic. On December 29, 1976, the Board issued a Notice To Show Cause why the Employer's motion should not be granted. In its response to the Notice To Show Cause, the Union contends that the Employer is attempting to frustrate the employees in the selection of their representative and that it is difficult to believe that the Employer was not aware of the pending acquisi- tion of the Minnetonka operation at the time the hearing was held. The Board, having duly considered the matter, is of the opinion that the Employer's motion is untimely, under the circumstances herein, since the Employer 226 NLRB 812. 2 Board Rules and Regulations, Series 8, as amended, Sec. 102.48(d)(1). See also American Federation of Musicians of the United States and Canada, 231 NLRB No. 76 had prior knowledge of the changed circumstances and ample opportunity during a period of several months while its case was pending before the Board to inform the Board that it was actively engaged in changing its operations by adding a third terminal, but that the Employer elected to await the issuance of the Board's decision before raising the issue of changed circumstances. Thus, insufficient reason has been shown for the Board to grant the Employer's motion to reopen record and remand matter for further proceedings. Accordingly, It is hereby ordered that the Employer's motion to reopen record and remand matter for further proceedings be, and it hereby is, denied. MEMBERS PENELLO and WALTHER, dissenting: We dissent from the majority's denial of the Employer's motion to reopen record and remand matter for further proceedings on the basis that it was not timely filed. Once again, as a brief history of this case shows, a litigant before this Agency is placed in a "damned if he does, damned if he doesn't" position, in which his rights depend on the largesse of the Board. Here the Employer participated in a representation hearing on April 21, 1976, in which the sole issue in contention was whether the Board had jurisdiction over its schoolbus operation. The parties stipulated to an appropriate unit which included all drivers and yard employees at the Employer's two terminals. Since the Employer had not yet consummated plans to purchase a third terminal in Minnetonka, how- ever, its inclusion in the unit was not an issue at the hearing. Thus, we are not faced with the normal circumstance in which a motion to reopen the record is denied because the evidence sought to be intro- duced was available prior to, or at the time of, the original hearing. 2 Rather, the majority denies the motion on the ground that it should have been filed between the date on which the case was transferred to the Board, and the date of our decision. We fail to see why it was incumbent upon the Employer to file the motion prior to issuance of our decision. Even if the motion had been filed earlier, the Board would not have acted on it-possibly by directing a remand-until the question of jurisdiction had been resolved. Accordingly, the filing of the motion by the Employ- er immediately after issuance of our decision has resulted in neither an appreciable delay in the disposition of this case nor in prejudice to the position of any of the parties. Indeed, there was no reason to burden the Agency with such a motion AFL-CIO (Penza Theatrical Agency, Inc.), 177 NLRB 842 (1969); Sunset Coffee and Macadamia Nut Co-op of Kona, 225 NLRB 1021 (1976). 510 COLUMBIA TRANSIT CORP. until the potentially dispositive question of jurisdic- tion had first been resolved. In our judgment, it is entirely proper for the Employer to ask us to determine the appropriate bargaining unit in light of the changes which have occurred during the Board's deliberations. By ignor- ing these changes and directing an election in the original, stipulated unit, as defined by our jurisdic- tional limits, the majority appears to be directing an election in an inappropriate unit. If the Union is certified, one of the parties is bound to challenge the appropriateness of that unit in a future proceeding. Thus, the Board is simultaneously fostering duplica- tive litigation and denying the parties final and expeditious resolution of the issues before them. In the meantime, parties before the Board are put on notice that the Board will, on a case-by-case basis, create technical requirements for ambiguous rules, even though the consequences may be contrary to the fair and efficient administration of the Act. We would grant the Employer's motion and remand this proceeding for purposes of accepting evidence bearing on the appropriate bargaining unit. 511