Rustman Bus Co., Inc.

152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Rustman Bus Company, Inc. and Miscellaneous Drivers, Helpers, Health Care and Public Em- ployees Union Local No. 610, affiliated with International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, Petitioner. Case 14-RC-10082 14 November 1986 DECISION ON REVIEW AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN, BABSON, AND STEPHENS On 9 April 19861 the Acting Regional Director for Region 14 issued a Decision and Direction of Election in this proceeding, in which he asserted jurisdiction over the Employer under the test set forth in National Transportation Service, 240 NLRB 565 (1979). In so doing, the Acting Regional Direc- tor found that the Employer retained broad discre- tion and control over its day-to-day labor relations policies and practices and was capable of effective bargaining with a representative of its employees. The Acting Regional Director rejected the Em- ployer's contention that, by virtue of its contracts with the, State of Missouri -and various public school districts to provide daily school bus trans- portation and related services, it was performing a function intimately connected with that of entities that are exempt from the Board's jurisdiction under Section 2(2) of the Act and, therefore, that the Board should not, assert jurisdiction over its oper- ations. In accordance with Section 102.67 of the Board's Rules and Regulations, the Employer filed a timely request for review of the Acting Regional Direc- tor's decision, which the Board granted by mail- gram order dated 5 May. The Employer's motion for stay of the scheduled election was denied by the Board; thus, the election was held as scheduled on 9 May and the ballots were impounded. On 24 June the Board issued its decision in Res- Care, Inc., 2 in which it reaffirmed the basic test set forth in National Transportation for determining whether assertion of jurisdiction over an employer providing services to or for an exempt entity is warranted, and again rejected the "intimate con- nection" standard under which jurisdiction was withheld if the private employer performed func- tions that were intimately related to allegedly tradi- tional government functions of the exempt entity.3 The Board cautioned, however, that in applying the National Transportation test, it would examine closely not only the control over essential terms All dates are 1986 unless otherwise noted 280 NLRB 670 (1986) (Member Stephens concurring and dissenting). See, e.g., Rural Fire Protection Co., 216 NLRB 584 (1975) and conditions of employment retained by the em- ployer but also the scope and degree of control ex- ercised by the exempt entity over the employer's labor relations. Res-Care, supra. In view of the decision in Res-Care, and in the related case of Long Stretch Youth Home,4 issued the same day, the Board remanded the instant case for the Regional Director's further consideration consistent with those decisions, including, if neces- sary, a reopening of the record. On 1 August, after the parties were afforded an opportunity to submit briefs on the issue, the Regional Director issued the attached Supplemental Decision and Order. The Regional Director found therein that the Employer retains sufficient control over the essential terms and conditions of employment of its employees to enable it to engage in meaningful collective bar- gaining, that the operational controls exercised by the exempt entities over the Employer's operations do not sufficiently deprive the Employer of control over essential terms and conditions of employment to preclude it from engaging in meaningful bargain- ing, and, therefore, that it would effectuate the pur- poses and policies of the Act to assert jurisdiction over the Employer. Thereafter, on 14 August, the Employer filed a timely request for review, contending, inter alia, that the Regional Director erred, in his interpreta- tion of Res-Care and Long Stretch. The Employer's request for review of the Supplemental Decision is granted. The Board has reviewed the entire record in this proceeding and has decided to affirm the Regional Director's Supplemental Decision and Order. We conclude, essentially for the reasons stated by the Regional Director,in his Supplemental Deci- sion and Order, that it will effectuate the purposes and policies of the Act to assert jurisdiction herein. Although the exempt entities with whom the Em- ployer has contracted monitor the Employer's per- formance in providing services under its contracts, we find that such monitoring consists largely of operational controls and is not so restrictive as to preclude the Employer from engaging in meaning- ful collective bargaining. In contending that the exempt entities exercise control over its operations in matters concerning basic bargaining subjects, the Employer places em- phasis on the exempt entities' authority to require that a particular driver not be utilized to fulfill a particular contract, and the entities' involvement in investigating the merits of complaints against the Employer's employees. 4 280 NLRB 678 (1986) (Chairman Dotson dissenting; Member Ste- phens concurring). 282 NLRB No. 25 RUSTMAN BUS CO. 153 The record shows that the various contracts re- quire the Employer to supply drivers who met specified minimum requirements, such as having good driving records and no felony convictions, being in good health as shown by a medical exami- nation, and meeting certain training requirements; however, the exempt entities do not participate in interviewing applicants , making hiring decisions, or adjusting grievances, The contracts do not give the exempt entities any right to impose discipline on a driver. The exempt entities do have the contractual right to ask that a driver be removed from a par- ticular run or not be used to fulfill a particular con- tract. Such right, however, does not prevent the Employer from reassigning the employee to a dif- ferent run or using that individual in another pro- gram; indeed, the record is clear that the Employer in fact has reassigned employees to other programs in such circumstances. A school board's right to re- quire the dismissal (or reassignment) of an employ- ee is relevant in applying the degree of control test, but does not, alone, preclude the assertion of juris- diction over the school bus operator. Compare R. W. Harmon & Sons, Inc., 250 NLRB 172 (1980), enfd. 664 F.2d 248 (10th Cir. 1981), with Associated Charter Bus Co., 261 NLRB 448 (1982). Regarding complaints concerning employees' performance, the assistant director of Pupil Trans- portation for the State's Department of Elementary and Secondary Education testified that 'when com- plaints are received in the desegregation transporta- tion office the first step taken is to contact the Em- ployer to request that the matter be investigated. If a complaint is received about a driver driving too fast, too slow, or not stopping at a designated loca- tion, that office will send one of its employees to follow that driver and specifically monitor his per- formance. The record does not show how often this has happened; however, in the most egregious of situations in which a driver may have commit- ted a serious safety violation or a serious policy in- fraction (such as letting students off at a point in which they would have to cross a four-lane high- way), the exempt entity would ask the Employer to review the infraction and to remove the driver from the desegregation program. In prior school bus cases in which the Board has declined to assert jurisdiction, the exempt entities had retained considerable control over the terms and conditions of employment of the private em- ployer's employees. Thus, in Associated Charter Bus Co., supra, the schooldistrict had the right to test drivers' road skills every 6 months without prior notice, participated in interviewing and hiring, re- viewed evaluations and suspended employees, di- rected discharges, and provided its own supervisors in addition to those employed by the school bus company. See also Associated Charter Bus Co., 263 NLRB 972 (1982). Compare K & E Bus Lines, 255 NLRB 1022 (1981), and Kal Leasing, 240 NLRB 892 (1979). In this case, we fmd that the above-described ac- tions of the exempt entities do not rise to a level that impinges on either the day-to-day operations of the Employer or on the Employer's ultimate control of labor relations. Accordingly, we find the Regional Director properly asserted jurisdiction over the Employer in accordance with the stand- ards set forth in National Transportation,, as reaf- firmed in Res-Care and Long Stretch. ORDER The Regional Director's Supplemental Decision and Order is affirmed and the case is remanded for further appropriate action as set forth therein. APPENDIX REGIONAL DIRECTOR'S SUPPLEMENTAL DECISION AND ORDER Upon a petition duly filed under Section 9(c) OF the National Labor Relations Act, as amended, a hearing was held before a hearing officer of the National Labor Relations Board, hereafter referred to as the Board, on 25 and 26 March 1986 and a Regional Direclor's Deci- sion and Direction of Election issued on 9 April 1986. On 11 April 1986, the Employer filed with the Board a Request for Review of that Decision. On 5 May 1986, the Board granted the Employer's Request for Review. On 9 May 1986, an election was conducted in the unit set forth in the Regional Director's Decision and Direc- tion of Election, and the ballots were impounded. On 30 June 1986, the Board issued an Order, remiand- ing the case for further consideration, consistent with the principles in its recently-decided cases, Res-Care, Inc., 280 NLRB 670 (1986) and Long Stretch Youth Bome, Inc., 280 NLRB 678 (1986). By Order issued 21 July 1986, the parties were afforded the opportunity to file briefs with respect to the issue of whether jurisdiction should be asserted, and, all briefs filed have been careful- ly considered. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its authority in this proceeding to the undersigned. Upon the entire record in this pro- ceeding, the undersigned finds: The Employer is engaged in commerce within the meaning of the Act and it will effectuate the purposes of the Act to assert jurisdiction here. At hearing, the parties stipulated that the Employer, Rustman Bus Company, Inc., a Missouri corporation, with its principal office and place of business in St. Louis County, Missouri, is engaged in providing daily school bus transportation and related services to public school systems in Missouri, Kansas, and Illinois , and that the Employer annually purchases and receives at its Missouri 154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD facilities, directly from points located outside the State of Missouri, goods valued in excess of $50,000. The record establishes that the Employer transports pupils to and from public schools under contracts with the Ritenour School District , the Lindbergh School Dis- trict, and the Jennings School District in St. Louis County, Missouri, and with the Francis Howell School District in St. Charles County, Missouri. The Employer also transports public school students within the City and County of St. Louis, Missouri, under contract with the Department of Elementary and Secondary Education of the State of Missouri, in furtherance of the Voluntary In- terdistrict Desegregation Plan implemented as part of the settlement of civil rights litigation in the United States District Court for the Eastern District of Missouri. At hearing, the parties stipulated that these public school districts, and the Department of Elementary and Second- ary Education of the State of Missouri are political sub- divisions within the meaning of Section 2(2) of the Act. The unit found appropriate in the Regional Director's Decision and Direction , of Election dated 9 April 1986, and in which an election was conducted on 9 May 1986, consists of all drivers, lot personnel, mechanics and utili- ty men employed by the Employer at its facilities in St. Louis County and in the Francis Howell School District in St. Charles County, Missouri, excluding office clerical and professional employees, guards, and supervisors as defined in the Act. These employees are engaged in op- erating,, maintaining, and repairing the school buses used by the Employer to provide pupil transportation services pursuant to contracts which the Employer has entered into with the Missouri Department of Elementary and Secondary Education and with the school districts set forth above. The record establishes that the Employer 's relationship with each of these governmental units is defined and controlled by the contract which the Employer has en- tered into with each of these exempt entities. In each in- stance, the Employer's contract with the exempt entity determines the total payment which the Employer will receive on the basis of such factors as type and size of vehicle used, the hours of operation, the number of buses to be used, and whether the particular bus run is for a regularly scheduled route or an extra -curricular charter, e.g., for field trip purposes . None of these contracts specifies or limits the wages or benefits which the Em- ployer pays to any of its employees, or otherwise re- stricts the Employer in establishing wage and benefit levels. The parties stipulated at hearing that neither the State of Missouri nor any political subdivision directly controls the identities of the specific individuals selected to be of- ficers of the Employer, or on its board of directors. The Employer's contracts with the Ritenour and Francis Howell School Districts also include provisions which specify, that the Employer shall be considered an inde- pendent contractor and not an agent of the school dis- trict. In monitoring the Employer's performance of its con- tractual obligations, the Missouri Department of Elemen- tary and Secondary Education exercises certain oper- ational controls over the transportation of pupils in the Voluntary Interdistrict Desegregation Program. The De- partment ,has frequent meetings and telephone conversa- tions with the Employer's managers, communicates with the Employer's facilities and buses by two-way radio, and uses a computer to make route and schedule changes. The Employer's contracts with individual school districts also, subject the routing of buses to school district review and approval . The Employer's contracts with the school districts and the Missouri De- partment of Elementary and Secondary Education also require the Employer to supply drivers who meet certain minimum specifications, including having good driving records, no felony convictions, and good health as deter- mined by a medical examination, and impose driver train- ing requirements. However, the contracts do not confer upon the exempt entities the right to impose discipline upon a driver, other than excluding the driver from pro- viding services under the particular contract . Further, neither the Employer's contract with the Department of Elementary and Secondary Education, nor any of its contracts with the public school districts described above, authorizes representatives of the State of Missouri or of the school districts to interview job applicants, to recommend an applicant's employment , or to participate in adjustment of a driver's grievance with the Employer. In view of the foregoing and the record as a whole, including the fact that the Employer's relationship with the Missouri Department of Elementary and Secondary Education and with each of the school districts involved herein is defined by the Employer 's contracts with those exempt entities; that none of these contracts specifies wages or benefits to be paid to employees of the Em- ployer; that none of these contracts limits the Employer's ability to set such wages and benefits, but instead, that the contracts define the total compensation to be paid to the Employer on the basis of the services which the Em- ployer provides, including the size of the vehicles the Employer uses, the hours these vehicles are in use, and the type of routes driven; the fact that neither the Mis- souri Department of Elementary and Secondary Educa- tion nor any of the school districts involved herein, has the authority to interview job applicants , recommend the hire of an applicant, require the Employer to discipline a driver, or to participate in the adjustment of a driver's grievance with the Employer; and notwithstanding that the Employer, in its contracts with the public school dis- tricts and with the Missouri Department ' of Elementary and Secondary Education; has agreed to hire drivers who meet certain minimum standards ; and that the exempt entities, under their contracts with the Employer, exercise some control over the Employer's routes and operations and have the right to require the Employer to remove a driver from providing services under the con- tract, I find that the Employer retains sufficient control over the essential terms and conditions of employment of its employees to enable it to engage in meaningful collec- tive bargaining with a labor organization. Long Stretch Youth Home, Inc., ' 280 NLRB 678 (1986). I further find that those operational controls, not pertaining to labor relations, which the Missouri Department of Elementary and Secondary Education and individual school districts RUSTMAN BUS CO. may exercise over the Employer's operations, including the routing and scheduling of buses to insure that all pupils have transportation to and from school, and that buses are operated in a safe manner, do not sufficiently deprive the Employer of ultimate control, over essential terms and conditions of employment to preclude it from engaging in meaningful bargaining. Res-Cure, Inc., 280 NLRB 670, 674 fn. 22 (1986). Therefore, I find that it will effectuate the purposes and policies of the Act to assert jurisdiction herein. 155 ORDER IT IS HEREBY ORDERED that the impounded ballots be opened and counted, that a tally of ballots issue, and that further appropriate action be taken in accordance with this Supplemental Decision and Order and the Rules and Regulations of the National Labor Relations Board.' ' Under the provisions of Sec. 102 67 of the Board's Rules and Regula- tions, a request for review of this Decision may be filed with the Nation- al Labor Relations Board, addressed to the Executive Secretary, 1717 Pennsylvania Avenue, N W., Washington, D.C. 20570. This request must be received by the Board in Washington by 14 August 1986.