Transit Management of Hamilton

195 302 NLRB No. 25 TRANSIT MANAGEMENT OF HAMILTON 1 The city intervened in Case 9–RM–986 as a Party in Interest. 2 General Box Co., 82 NLRB 678 (1949). 3 The Petitioner relied on the Board’s statement in Pennsylvania Garment Mfrs. Assn., 125 NLRB 185, 186 fn. 7 (1959), that under General Box, supra, the benefits of certification are available to the employer as well as to the in- cumbent labor organization even where the employer has recognized the Union for many years. 4 United States Gypsum, supra, overruled to the extent inconsistent, the Board’s earlier holding in Whitney’s, 81 NLRB 75 (1949), and similar cases that Sec. 9(c)(1)(B) provided an unqualified right to an employer to question the majority status of an incumbent union. Accordingly, TMH’s reliance on Pennsylvania Garment Mfrs., supra, is misplaced as that case was to the extent it was inconsistent, implicitly overruled by United States Gypsum. Cases de- cided subsequent to United States Gypsum have applied the ‘‘objective consid- Continued City of Hamilton, Ohio and Transit Management of Hamilton, Inc. and Amalgamated Transit Union Local 738, AFL–CIO Transit Management of Hamilton, Inc. and Amal- gamated Transit Union Local 738, AFL–CIO. Cases AO–286 and 9–RM–986 March 25, 1991 ORDER DENYING REVIEW AND ADVISORY OPINION BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT, DEVANEY, OVIATT, AND RAUDABAUGH On October 9, 1990, Transit Management of Ham- ilton, Inc. (TMH or the Employer) filed a petition for an election in Case 9–RM–986. Thereafter, a hearing was held before a hearing officer of the National Labor Relations Board and on January 10, 1991, the Acting Regional Director for Region 9 issued a Decision and Order dismissing the petition. In accordance with Sec- tion 102.67 of the Board’s Rules and Regulations, the Employer filed a timely request for review of the Re- gional Director’s Decision and Order. The City of Hamilton, Ohio (the City) filed a brief in support of the request,1 and the Union filed a response in opposi- tion to the request. Pursuant to Section 102.98(a) of the National Labor Relations Board Rules and Regulations, on February 4, 1991, the City and TMH jointly filed a petition for an advisory opinion in Case AO–286 and a brief in sup- port, respectively, seeking a determination whether the Board would assert jurisdiction over TMH. The Union filed a brief in opposition to the petition. The Board has considered the entire record in these cases, has consolidated Cases 9–RM–986 and AO–286 for decision and makes the following findings. 1. Pursuant to contracts with the City, TMH, and its parent company, ATE National Bus Services, Inc. (ATE), TMH operates a bus system with the city serv- ing the general public. Operating funds for the system are comprised of approximately 50 percent in Federal funds, 15–20 percent in state funds, and 30–35 percent in local funds. Local funding is derived from fares and the general fund of the city. During the 12-month pe- riod preceding the hearing in Case 9–RM–986 gross revenues for the transit system exceeded $250,000. During the same period TMH purchased and received goods and materials in excess of $50,000 directly from sources outside the State of Ohio. 2. The busdrivers and mechanics employed by the bus system have, during all times relevant, been rep- resented by Amalgamated Transit Union Local 738, AFL–CIO (the Union). All parties agree that the Union is the recognized bargaining agent for the employees in an appropriate unit. 3. On October 18, 1988, the Union filed a Request for Recognition with the State of Ohio, State Employ- ment Relations Board (SERB) naming the City as the Employer of the mechanics and busdrivers whom it represented. On November 8, 1988, the City filed an Objection to Request for Recognition, arguing that the employees in issue were not public employees but rather the employees of TMH, a private employer. On May 3, 1990, SERB issued a Certification Pursuant to Request for Recognition, certifying the Union as the bargaining representative of the same busdrivers and mechanics in issue here. In a companion opinion, SERB held that the City was the Employer of the bus- drivers and mechanics, that TMH was its agent, and that the employees were ‘‘public employees’’ subject to its jurisdiction. The certification and opinion have been appealed by the City and TMH to the appropriate state court. The Acting Regional Director dismissed the petition in Case 9–RM–986. In doing so, he relied on the hold- ing of United States Gypsum Co., 157 NLRB 652 (1966), that a petition for election under Section 9(c)(1)(B) of the Act will not lie where an employer is currently recognizing the labor organization and where the employer has not demonstrated, by objective considerations, that it has reasonable grounds to doubt the labor organization’s representative status. The Act- ing Regional Director rejected TMH’s argument that because the Union has never been certified, the Board’s General Box2 doctrine permits an employer or a union to secure the advantages of a Board certifi- cation.3 In its request for review, the Petitioner seeks rever- sal of the Acting Regional Director’s decision and a determination by the Board that TMH is the employer of the employees in the unit and that TMH is an em- ployer under the jurisdiction of the Board thereby pre- empting the jurisdiction of the State of Ohio. The City as a Party in Interest filed a statement in support of the request for review. After careful consideration, we find that the Acting Regional Director’s decision is consistent with existing Board precedent4 and that the request for review does 196 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD erations’’ test for both certified and uncertified incumbent unions. St. Joseph Hospital & Medical Center, 219 NLRB 892 (1975); Barrington Plaza & Tragniew, Inc., 185 NLRB 962, 963 (1970); and Cantor Bros., Inc., 203 NLRB 774, 778 (1973). 5 See Charleston Transit Co., 123 NLRB 1296 (1959). 6 ITT Job Training Services, 297 NLRB 250 (1989); Command Security Corp., 293 NLRB 593 (1989), and cases cited therein (Res-Care issue); and District 65, Wholesale, Retail, Office & Processing Union, 186 NLRB 791 (1970), and James M. Casida, 152 NLRB 526 (1965) (preemption issue). not present a compelling reason for granting review. Accordingly, the request for review is denied in Case 9–RM–986. We also deny the joint request of the City and TMH for an advisory opinion in Case AO–286. Although we would find, based on the undisputed allegations above that the transit system satisfies the Board’s commerce standards for asserting jurisdiction,5 this is not the primary issue raised by TMH and the City. Rather, it is clear from the petition and from the briefs that the primary issue on which the Joint Peti- tioners seek an opinion is whether TMH has sufficient control over the employment conditions so as to permit meaningful collective bargaining, i.e., whether the Board would assert jurisdiction over TMH under the principles of Res-Care, Inc., 280 NLRB 670 (1986). This issue is not appropriate for resolution in an advi- sory opinion proceeding under Section 102.98(a).6 Ac- cordingly, we decline to address it and the petition for an advisory opinion is dismissed.