Baystate Bus Corp.

National Labor Relations Board - Board Decisions

Feb 21, 1979

240 N.L.R.B. 862 (N.L.R.B. 1979)

862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Baystate Bus Corporation and Amalgamated Transit
Union, AFL-CIO-CLC, lAcal Division 1547,' Peti-
tioner. Case I- RC- 15848
February 21, 1979
DECISION AND DIRECTION OF ELECTION
BYI CHAIRMAN FANNIN(;G AN ME1MB-RS JNKINS
ANI) TRtILSI)A ,I
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held before Hearing Officer Edward F.
Hanley, Jr. Following the hearing, and pursuant to
Section 102.67 of the National Labor Relations
Board Rules and Regulations and Statements of Pro-
cedure, Series 8, as amended, the Regional Director
for Region I transferred this case to the National
Labor Relations Board for decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has reviewed the rulings of the Hearing
Officer made at the hearing and finds that no preju-
dicial error was committed. They are hereby af-
firmed.
Upon the entire record in this proceeding. the
Board finds:
I. The Employer, a private Massachusetts corpo-
ration, is engaged in the operation and management
of a transit system in Brockton pursuant to a con-
tract with the Brockton Area Transit Authority.
herein called BAT. BAT is a political subdivision of
the Commonwealth of Massachusetts formed in No-
vember 1974 pursuant to Massachusetts General
Laws, chapter 161-B.
Section 6 of chapter 161 -B authorizes entities such
as BAT to contract with private transportation com-
panies for the operation and use by such companies
of any mass transportation facility or equipment held
by the authority. Section 25 of chapter 161 B pro-
hibits authorities such as BAT from directly operat-
ing a mass transportation service.
Shortly after BAT's creation it contracted with
Crocker Transportation Corporation for mass trans-
portation services. In July 1975 Baystate succeeded
('rocker. Baystate and BAT are currently parties to a
3-year agreement which will expire in June 1980. Un-
der that contract Baystate is obligated to provide
mass transit for the city of Brockton along such
routes and according to such schedules as may be
'Name ppealrs as corrected at the hearingl
240 NLRB No. 112
designated by BAT. Baystate operates and maintains
buses which are owned by BAT and is obligated to
hire and supervise sufficient personnel (including a
minimum of 34 full-time busdrivers) to meet its obli-
gations under the contract. All farebox receipts, as
well as all receipts from the sale of any kind of pass,
are the property of BAT.
Baystate is obligated to supply a monthly requisi-
tion for payment which lists all anticipated costs and
expenses for the following calendar month. Baystate
then receives the amounts specified in the monthly
requisition for payment. Although BAT reserves the
right to refuse payment for any expenditure not rea-
sonable and necessary for the efficient operation of
the transit service provided by Baystate, BAT has
never refused to render any payment under that pro-
vision. Baystate further receives a management fee of
$60,000 per annum, payable in equal monthly install-
ments.
Under the contract, Baystate is responsible for the
day-to-day operation of the transit system and has
sole responsibility for hiring all of its employees; it
unilaterally sets the wages, fringe benefits, hours, and
working conditions for its employees. The Company
also retains the authority to discipline its employees
without any interference from BAT.
When Baystate assumed the responsibility of pro-
viding transit services it employed the predecessor's
drivers who were then represented by the Petitioner.
At that time Baystate and Petitioner negotiated a col-
lective-bargaining agreement setting forth, in com-
prehensive terms, the wages, fringe benefits, hours,
and working conditions of drivers, and in 1977 Bay-
state and the Union entered into a second, similar
agreement which expires in June 1980. Only Baystate
and the Union are signatories to these agreements;
BAT did not send a representative to the negotia-
tions in either 1975 or 1977, and BAT neither re-
quired that a copy of the negotiated contract be sub-
mitted for its approval nor restricted Baystate's
authority to enter into an agreement with the Union
in any manner.
The only issue here is whether the Board's asser-
tion of jurisdiction over the Employer is warranted in
light of the Employer's ties to an exempt entity--
BAT. The Board in National Transportation Service,
Inc.,2 recently established that in such situations its
determination will depend upon whether an em-
ployer meets the definition of "employer" in Section
2(2) of the Act and, if so, whether the employer has
sufficient control over the employment conditions of
its employees to enable it to bargain with a labor
organization as their representative. Both the Em-
ployer and Petitioner take the position that the Board
24) Nl RB ,5s ( 19
7
9!. iMembers Murph) and Pnclli, dissenting
BAYSTATE BUS C`ORPORATION 863
hasjurisdiction over the Employer, however, the Em-
ployer will not recognize the Petitioner as the exclu-
sive representative of unit employees until the Union
is certified by the Board.
The record establishes that Baystate hires. fires.
disciplines, and otherwise sets the terms and condi-
tions of employment for its employees without inter-
ference by BAT. Furthermore. the record shows that
Baystate has engaged in extensive negotiations with
Petitioner on two occasions during the last 3 years
over the terms and conditions of employment for its
driver employees, and these negotiations have result-
ed on both occasions in comprehensive collective-
bargaining agreements. Moreover b the terms of its
agreement with BAT, Baystate is vested with the full
managerial responsibility for operating the transit
system in Brockton and BAI' is contractually obli-
gated to refrain from interfering in Baystate's mana-
gerial activities. Considering the above, we conclude
that Baystate retains sufficient control over the work-
ing conditions of its employees to enable it to engage
in meaningful bargaining over conditions of employ-
ment with Petitioner.
The Employer has annual gross revenues of ap-
proximately $3 million and purchases approximatel?
$400,000 worth of materials. parts. supplies, oil. and
fuel each year directly or indirectly from sources out-
side the Commonwealth of Massachusetts. Since the
volume of gross revenues and interstate purchases is
sufficient to satisfy the Board's jurisdictional stan-
dards for private transit operations, 3 we find that the
Employer's operations affect commerce within the
meaning of the Act and it would effectuate the pur-
poses of the Act to assert jurisdiction herein.
2. The parties stipulated. and we agree. that the
Petitioner is a labor organizationr within the meaning
of Section 2(5) of the Act.
3. A question affecting commerce exists concern-
ing the representation of employees of the Employer
within the meanin of Sections 9(c)( ) and 2(6) and
(7) of the Act.
4. ''he parties stipulated and we find that the fol-
lowing unit is appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(c) of
the Act:
All regular full-time and regular part-time em-
ployees employed in the maintenance depart-
ment at the Employer's facility at 1442 Main
Street. Brockton. Massachusetts, including
working shift foremen, mechanics, mechanics'
helpers, cleaners, fuelers, building maintenance
employees. bodymen, window and upholstery
men and partsmen; but excluding temporary
employees, office clerical employees. all other
employees not specified above, guards and sup-
ervisors as defined in the Act.
[D)irection of Election and Excclvior footnote omit-
ted from publication.]
/ , P,,, ,, ., 226, N RB -14 19 : n ( hl/,rle,; lianVoi ( ,,,
,a,. 121 N RB 1296 (199b
BAYSTATE BUS ORPORATION 63
\ It ..... A....., .A...