National Transportation Service, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD National Transportation Service, Inc.' and Teamsters Local Union No. 728, affiliated with the Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Indepen- dent, Petitioner. Case 10-RC-10906 August 31, 1977 DECISION ON REVIEW BY MEMBERS JENKINS, MURPHY, AND WALTHER On December 17, 1976, the Regional Director for Region 10 issued a Decision and Direction of Election in the above-entitled proceeding in which he found appropriate a unit consisting of the Employ- er's Atlanta, Georgia, drivers, mechanics, service employees, and helpers who are engaged in providing nonexempt services. Thereafter, in accordance with Section 102.67 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Employer filed a timely request for review of the Regional Disiector's decision, contending, inter alia, that the Regional Director erred in asserting jurisdic- tion over its operations and in his description of the appropriate unit for bargaining. The Petitioner filed a reply in opposition to the request for review. On January 12, 1977, the National Labor Relations Board, by telegraphic order, granted the Employer's request for review. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the entire record in this case with respect to the issues under review and makes the following findings: The Employer contends that the Regional Direc- tor: (1) erroneously applied the Board's "non-retail" standard instead of the "public transit" standard; (2) erroneously determined that certain revenues should be counted for jurisdictional purposes; and (3) erroneously determined that National Transporta- tion Service, Inc., and National Bus Sales and Leasing, Inc., constitute a "single employer." National Transportation Service, Inc., provides schoolbus transportation, charter services, and leas- ing services to Atlanta-area school systems. In addition, it leases buses from local school systems ' The name of the Employer appears as shown in the record. The relationship between National Transportation Service, Inc., and National Bus Sales and Leasing, Inc., is discussed, infra. 2 224 NLRB 203 (1976). :c Cf. Mitchell School, Incorporated, and Main Line Day School, Incorpo- rated. 224 NLRB 1017 (1976); Camptown Bus Lines, Inc., 226 NLRB 4 (1976). 4 Charleston Transit Company, 123 NLRB 1296 (1959). 231 NLRB No. 162 and provides drivers therefor, and operates private school and general public bus services as well. During its past fiscal year, it had gross revenues of approximately $1.5 million and purchased goods in excess of $50,000 directly from sources located outside the State of Georgia. In Roesch Lines, Inc., 2 the Board held that bus transportation for public school children was inti- mately related to public education, an exempt governmental function. As such, employers who perform such functions for public school authorities are exempt from the Act. Accordingly, we shall decline jurisdiction over the Employer's operations insofar as they involve the transportation of public school children. In several recent cases, however, we have consid- ered principles applicable to employers which engage in both exempt and nonexempt operations 3 and have concluded that, in determining whether our standard for asserting jurisdiction over the nonexempt opera- tion has been satisfied, we will combine the revenues from both the exempt and nonexempt operations. Accordingly, as the total gross revenues of the Employer exceed our $250,000 standard,4 we shall assert jurisdiction over the Employer's nonexempt operations.5 2. The labor organization involved claims to represent certain employees of the Employer. 3. A question affecting commerce exists concern- ing the representation of employees of the Employer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. 4. The parties agreed to include all full-time and regular part-time drivers, mechanics, service employ- ees, and helpers employed by National Transporta- tion Service, Inc., in the unit. The Regional Director excluded two plant clericals from the unit as supervisors and provided that three others may vote subject to challenge. No party seeks review of this determination. Further, as most of the Employer's employees engage in both exempt and nonexempt work, the Regional Director included in the unit all such employees who perform nonexempt duties for "sufficient periods of time ... to demonstrate that they . . . have a substantial community of interest in the unit's" working condition, citing Berea Publishing Company, 140 NLRB 516, 519 (1963). The Employer I As the business volume of National Transportation Service, Inc., satisfies our jurisdictional standards, we find it unnecessary to determine whether National Transportation Service, Inc., and National Bus Sales and Leasing, Inc., are joint employers, as was found by the Regional Director. For reasons expressed in We Transport Inc., and Town Bus Corp., 215 NLRB 497 (1974), Member Jenkins would assert jurisdiction over the Employer's entire operations, including schoolbus operations. 980 NATIONAL TRANSPORTATION SERVICE contends that this standard is too vague to determine who is and who is not within the bargaining unit. Joseph Marcantel, president of National Transpor- tation Service, Inc., testified without contradiction that four drivers are engaged primarily in nonexempt private charter work to factories. Two of these drivers spend 80 percent of their time on the Carrollton factory run, one driver performs such work exclusively, and the fourth driver spends two- thirds of his time on the Buford factory run. Given the amount of time that these drivers spend perform- ing unit work, it is evident that they share a substantial community of interest with unit employ- ees and we shall include them therein. Marcantel further testified-again without contradiction-that the remaining drivers are engaged principally in exempt public charter work for public school systems and do nonexempt private charter work only on an occasional and irregular basis. Since the nonexempt work of the remaining bus drivers is so insubstantial, we shall exclude them from the unit. As to the mechanics, service employees, and helpers, however, we find 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. Therefore, any remaining issues as to employee unit placement which the parties cannot resolve will be resolved through the challenged ballot procedure. Accordingly, we shall remand their case to the Regional Director for the purpose of conducting an election pursuant to his Decision and Direction of Election, as modified herein, except that the payroll period for determining eligibility shall be that ending immediately before the date for issuance of this Decision on Review. [Excelsior footnote omitted from publication.] 981