D&L Transportation

National Labor Relations Board - Board Decisions

Aug 7, 1997

324 N.L.R.B. 160 (N.L.R.B. 1997)

160
324 NLRB No. 31
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Waterbury and Waterbury Special Education terminals are
separately located in Waterbury.
2 The Employer argues as it did in its opposition to the Petitioner’s
request for review, that the Petitioner did not state an appropriate
ground for granting review. The Employer contends that the Peti-
tioner incorrectly relied on the Board’s Notice of Proposed Rule-
making for Single Location Units (60 Fed. Reg. 50146 (Sept. 28,
1995)), because it was a proposed and not a final rule. The Em-
ployer also refers to Congressional action prohibiting expenditure of
Agency funds in connection with the rule for the current fiscal year.
Contrary to the Employer, it is clear that the Petitioner’s request for
review raises substantial issues warranting review apart from its reli-
ance on the proposed rulemaking. In reaching its determination here,
the Board does not rely on the proposed rule or any considerations
therein.
D&L Transportation, Inc. and CSEA, Local 760,
SEIU, AFL–CIO, Petitioner. Case 34–RC–1396
August 7, 1997
DECISION ON REVIEW AND DIRECTION OF
ELECTION
BY CHAIRMAN GOULD AND MEMBERS FOX AND
HIGGINS
On May 17, 1996, the Acting Regional Director for
Region 34 issued a Decision and Order in which he
found that the petitioned-for drivers, spare drivers, bus
monitors, and fuelers at the Employer’s Shelton, Con-
necticut terminal do not constitute a separate appro-
priate unit from the employees at the Employer’s six
other Connecticut terminals located in Thomaston, Wa-
terbury, Waterbury Special Education,1 Woodbury,
Prospect, and Seymour. Thereafter, in accordance with
Section 102.67 of the Board’s Rules and Regulations,
the Petitioner filed a timely Request for Review of the
Acting Regional Director’s decision. The Employer
filed an opposition. By order dated September 27,
1996, the Board granted the Petitioner’s Request for
Review.
Having carefully reviewed the entire record, includ-
ing the Employer’s brief on review,2 the Board con-
cludes, contrary to the Acting Regional Director, that
the petitioned-for unit, limited to employees at the
Shelton terminal, is an appropriate unit.
The Employer is a bus company engaged in provid-
ing interstate and intrastate charter bus services and
local school transportation within Connecticut. Its
headquarters are located in Prospect, Connecticut. The
petitioned-for unit includes 46 drivers, 9 monitors, and
an unspecified number of fuelers. There are approxi-
mately 369 drivers, monitors, and fuelers at all 7 loca-
tions. The drivers operate the buses, while the monitors
escort passengers on to the buses, properly seat them,
and then monitor the passengers’ behavior. The mon-
itors work on special education routes and are em-
ployed only at the Shelton, Waterbury Special Edu-
cation, and Prospect locations. Fuelers fuel the buses,
perform minor repairs and, occasionally, drive.
The Thomaston, Waterbury, Prospect, Seymour, and
Shelton terminals are located on a north to south line
with the Thomaston location being the most northern
terminal and the Shelton location being the most
southern terminal. The Woodbury terminal is located
17 miles west of the Prospect terminal. The seven ter-
minals are located 3 to 21 miles from the Prospect
headquarters. The Shelton terminal is located 18 miles
from Prospect. The distance between Thomaston and
Shelton is at least 29 miles.
A single plant or store unit is presumptively appro-
priate unless it has been so effectively merged into a
more comprehensive unit, or is so functionally inte-
grated, that it has lost its separate identity. J&L Plate,
310 NLRB 429 (1993), citing Dixie Belle Mills, 139
NLRB 629, 631 (1962). To determine whether the pre-
sumption has been rebutted, the Board looks at such
factors as central control over daily operations and
labor relations, including extent of local autonomy;
similarity of skills, functions, and working conditions;
degree of employee interchange; and bargaining his-
tory, if any. J&L Plate, supra; Esco Corp., 298 NLRB
837, 839 (1990), and cases cited.
In finding that the single location presumption had
been rebutted, the Acting Regional Director cited the
existence of uniform rules, regulations, instructions,
and policies; the centralized nature of administration,
accounting, hiring, training, safety practices and proce-
dures, wages, and benefits; the regular daily inter-
change of drivers and equipment; the geographic prox-
imity of the terminals; the highly interdependent nature
of the Employer’s operational structure; the apparent
lack of autonomy of the individual terminal managers;
and the common skills and functions of drivers and
monitors. In reaching his conclusion, however, the
Acting Regional Director recognized that the employ-
ees assigned to the Shelton terminal appeared to have
a lower level of daily interchange and contact with em-
ployees assigned to other terminals, as well as a some-
what higher skill level. The Acting Regional Director,
nevertheless, concluded that these factors alone did not
outweigh the other factors he cited and were insuffi-
cient to establish that employees at the Shelton termi-
nal constituted a separate appropriate unit.
Although we agree with the Acting Regional Direc-
tor that the Employer has common policies and proce-
dures and centrally administers certain aspects of its
operations, we disagree with his conclusion that the
evidence regarding local autonomy, common skills and
functions, interchange, and geographic proximity of the
terminals is sufficient to rebut the single facility pre-
sumption.
The Acting Regional Director incorrectly evaluated
the degree of local autonomy at the Shelton terminal.
Like most of the Employer’s terminals, the Shelton fa-
VerDate 11-MAY-2000 14:48 Apr 30, 2002 Jkt 197585 PO 00004 Frm 00160 Fmt 0610 Sfmt 0610 D:\NLRB\324.017 APPS10 PsN: APPS10
161D&L TRANSPORTATION
3 The Thomaston and Woodbury terminals share a terminal man-
ager and dispatcher.
4 Although new drivers from several locations initially are trained
at one location, further training is conducted at two separate loca-
tions. Hence, the control over training supports neither a single nor
a seven-terminal unit.
5 The Employer introduced into evidence the records of over 750
individual charters from January 1995 through a week prior to the
May 6, 1996 hearing. Nearly 75 percent of the charters operated out
of the Employer’s Prospect headquarters using Prospect terminal
drivers. Approximately 56, or less than 8 percent, involved any rela-
Continued
cility has a local manager and a local dispatcher.3
There is no dispute that the local manager makes hir-
ing decisions. Also, the Shelton dispatcher assigns and
dispatches spare drivers to routes when regular drivers
are absent. Personal absences, tardiness, and other re-
quests for time off must be reported to the local termi-
nal manager, according to the Employer’s employee
handbook, section 1.10.9, ‘‘Attendance.’’ That section
states further that drivers should ‘‘[m]aintain contact
with the terminal Manager so that the necessary ar-
rangements can be made to cover your position.’’ In
addition, the handbook gives the terminal manager
‘‘the right to challenge absences’’ by requesting a doc-
tor’s note or other supporting documentation. Acci-
dents must be reported first to the terminal and any ar-
rests to the terminal manager, although accidents are
centrally investigated.
Terminal managers oversee the daily performance of
drivers and monitors. If there is a minor performance
problem, terminal mangers may discuss the matter with
the employee. Something more serious, or of a con-
tinuing nature that requires formal discipline, is dis-
cussed with, and must be approved by, the Employer’s
vice president for operations or another headquarters’
official. Wage increases are decided by the Prospect
headquarters.
In view of the local control over hiring, assignments
and dispatching, time off, and minor discipline, we do
not believe the headquarters’ involvement in formal
discipline and approval of wage increases is sufficient
to rebut the presumption. Moreover, the presence of a
terminal manager and a local dispatcher at the Shelton
terminal is further evidence that individuals at this lo-
cation are vested with significant autonomy over local
terms and conditions of employment.4 The existence of
the centralized administration and control of some
labor relations policies and procedures is not inconsist-
ent with a finding, as here, that there exists sufficient
local autonomy to support the single location presump-
tion. See, e.g., Carter Hawley Hale Stores, 273 NLRB
621 (1984).
In addition, there is undisputed evidence of separate
skills and different terms and conditions of employ-
ment for employees at the Shelton terminal. As indi-
cated, only three of the seven terminals use monitors.
Of those three, the Shelton monitors are the highest
paid. Their higher wages are attributable to the greater
skills needed to care for the type of special education
children transported by the Shelton terminal buses.
There also is local terminal seniority. Seniority is
based on consecutive years with the Employer and it
may not be transferred between locations. The employ-
ees handbook states that seniority may assist the man-
ger in ‘‘administrative decisions,’’ and specifically
states that any route not retained by a driver at the end
of the previous school year will be assigned on a se-
niority basis, if practical. The employee handbook fur-
ther provides that seniority will be used for seasonal
or permanent layoffs.
As acknowledged by the Acting Regional Director
in his decision, there also is a lack of significant inter-
change involving the Shelton terminal. Drivers perform
home to school, charter, or shuttle trips. There is no
dispute that while the Employer transfers drivers
among the six other terminals daily to compensate for
high turnover on its home to school routes, and for the
ongoing need to cover charters, the temporary transfer
of drivers to and from Shelton is unnecessary. When
additional drivers are needed at the Shelton terminal,
the Shelton spare drivers, fuelers, dispatcher, or the
manager are sufficient in number to substitute. That lo-
cations other than Shelton may have a higher or sig-
nificant level of interchange with each other to accom-
modate the Employer’s daily operations does not ne-
gate the separate community of interest shared by the
Shelton drivers, who rarely interchange for this pur-
pose. Moreover, there have been only two permanent
transfers of drivers from Shelton to other locations.
There is evidence that Shelton drivers transport
Shelton students to technical, private, and special edu-
cation schools outside of Shelton where drivers from
other terminals similarly drop off students. While this
provides an opportunity for incidental contact among
drivers from various locations, it is not evidence of
interchange as the Employer suggests. Also, the record
does not indicate the length and frequency of this con-
tact or the proportion of Shelton drivers involved in
these drop offs. Such contact, in any event, merely is
incidental to the task of transporting students to a com-
mon location.
Although the Employer emphasizes the Shelton driv-
ers’ participation in its charter and shuttle operations,
one Shelton driver testified that 90 percent or more of
the Shelton drivers’ trips involve home to school runs
in Shelton rather than charter or shuttle runs. The evi-
dence presented by the Employer regarding the number
of charters involving the Shelton terminal, in any man-
ner, is insubstantial. Less than 8 percent of all charters
involve a Shelton driver or the Shelton terminal, and
only three of these trips involve Shelton drivers work-
ing at another terminal.5 This would involve about one
VerDate 11-MAY-2000 14:48 Apr 30, 2002 Jkt 197585 PO 00004 Frm 00161 Fmt 0610 Sfmt 0610 D:\NLRB\324.017 APPS10 PsN: APPS10
162 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tionship between the Shelton drivers or the Shelton terminal and
other locations. As indicated above, only three of these documents
involved a Shelton driver actually operating from a terminal other
than Shelton. Although 41 of these charters involved a Shelton driv-
er performing charters for another terminal, the Shelton driver still
operated from the Shelton terminal. The remaining 12 charters in-
volved drivers from a different terminal performing charters for the
Shelton terminal; but again, these drivers operated from their own
terminal.
6 We recognize that the Woodstock and Special Olympic shuttles
involved more than contact among drivers from different terminals,
as the drivers worked together at the site of each event. But these
two events in two separate years are insufficient evidence to support
a finding of significant regular interchange of employees between lo-
cations.
7 Moreover, participation in charter and shuttle trips is voluntary;
drivers must ‘‘sign-up’’ to participate. Hence, these trips are not nec-
essarily a regular part of each driver’s job. We note that voluntary
interchange, such as a permanent transfer made at the request of an
employee, is given less weight in determining if employees from dif-
ferent locations share a common identity. See, e.g., Dayton-Hudson
Corp., 227 NLRB 1436, 1438 (1977). As this contact is the result
of voluntary trips, it is of less significance.
8 The dissent acknowledges the local autonomy present here and
then apparently brushes it aside, because labor relations policies and
procedures are centrally determined. But the existence of centralized
personnel and labor policies and procedures, or even ultimate re-
sponsibility for such matters at a centralized source, does not auto-
matically trump the acknowledged existence of local autonomy. The
Board has repeatedly found single facility units appropriate despite
uniform and centrally devised policies where these policies are im-
plemented with autonomy by local managers or supervisors. See,
e.g., Courier Dispatch Group, 311 NLRB 728, 731 (1993); J&L
Plate, 310 NLRB 429 (1993); Carter Hawley Hale Stores, 273
NLRB 621 (1983); Kapok Tree Inn, 232 NLRB 702, 703–704
(1977). The dissent cites as an example decisions made regarding se-
niority which is, by centralized policy, local seniority and locally ad-
ministered. The dissent ignores that the policy itself mandates local
terms and conditions of employment for unit employees at each lo-
cation and is locally administered. In any event, the local autonomy
over the Shelton employees’ overall working conditions, together
with the presence of the local manager and the dispatcher, strongly
outweigh the fact that wages and formal discipline are the province
of the Employer’s central management and that all other personnel
policies are uniform and centrally determined.
9 We note that, while the ratio of employees to supervisors is only
a secondary indicium of supervisory status, here the approximately
55 unit employees would be totally unsupervised at the Shelton fa-
cility were the Shelton terminal manager not found to be a super-
visor. In this regard, we further note that higher managers from the
Prospect headquarters visit Shelton no more than approximately once
every 2 weeks, and this generally is for safety-related matters. The
director of safety operations has been to Shelton 20–25 times in the
past year. The Employer’s vice president for operations (who over-
sees all daily operations, terminal managers, and personnel matters)
testified that he had been to the Shelton terminal 5–6 times in the
past year. The Employer’s president visited three times during the
current school year.
10 In view of the undisputed higher wages and greater skills of the
Shelton monitors, the dissent incorrectly lumps these Shelton mon-
itors with monitors at two of the Employer’s other locations.
charter per year for each of the 46 Shelton drivers.
Further, apart from a list of participating drivers, no
evidence on the overall number of shuttles involving
Shelton drivers was presented.6 Although the Acting
Regional Director found that shuttles and charters may
present ‘‘ample opportunity’’ for contact among driv-
ers from each terminal, like the common destinations
on some home to school routes, this contact is inciden-
tal to the common task of transporting students or oth-
ers to a common location. In any event, the number of
these opportunities for Shelton drivers are relatively
few.7
Based on the forgoing facts, we find that the evi-
dence is insufficient to rebut the single facility pre-
sumption. The evidence regarding local autonomy sup-
ports the presumption as there is local control over hir-
ing, time off, dispatching/assignment, and minor dis-
cipline.8 Indeed, we find it apparent that there is local
supervision in Shelton by a terminal manager.9 Al-
though the drivers at each location perform a similar
function, the Shelton terminal is one of only three lo-
cations using monitors, and they are the highest paid
monitors because of their skills.10 Employees at each
location have separate seniority. Interchange of drivers
to and from Shelton is minimal, a finding made by the
Acting Regional Director which is supported by the
record. Although there is the potential for contact with
other drivers converging at a common destination to
deliver passengers, the evidence of actual contact be-
tween Shelton employees and employees from other
terminals is insignificant and, at best, incidental to
transporting passengers to a common site. Moreover,
the Shelton location is one of the furthest in distance
from the Prospect headquarters. And the nearest termi-
nal to Shelton, the Seymour terminal, has no monitors.
Although some factors in this case favor the broader
unit urged by the Employer, on balance, we cannot say
that the unit sought by the Petitioner is not an appro-
priate unit for collective bargaining. See generally
Overnite Transportation Co., 322 NLRB 723 (1996).
Rather, the evidence presented does not establish that
the Shelton terminal has been ‘‘so effectively merged
into a more comprehensive unit, or is so functionally
integrated, that it has lost its separate identity.’’ J&L
Plate, 310 NLRB at 430. We conclude that the single
location presumption has not been rebutted and that
the Shelton terminal unit is an appropriate unit.
Accordingly, the Acting Regional Director’s deci-
sion is reversed, the petition in Case 34–RC–1396 is
ordered reinstated, and the petition is remanded Region
34 for processing consistent with this decision.
[Direction of Election omitted from publication.]
MEMBER HIGGINS, dissenting.
Unlike my colleagues, and in agreement with the
Acting Regional Director, I would dismiss the petition.
Although there is a presumption in favor of the appro-
priateness of a single location unit, that presumption
has been rebutted here. As the Acting Regional Direc-
tor finds, the functional integration of the Employer’s
operation is so substantial as to negate the separate
VerDate 11-MAY-2000 14:48 Apr 30, 2002 Jkt 197585 PO 00004 Frm 00162 Fmt 0610 Sfmt 0610 D:\NLRB\324.017 APPS10 PsN: APPS10
163D&L TRANSPORTATION
1 For example, the local manager makes certain decisions based on
seniority, and such seniority is local. However, the labor policy of
having local seniority is centrally set.
identity of the single facility unit (at Shelton) sought
by the Petitioner.
The Acting Regional Director, in finding functional
integration, relied on: the Employer’s uniform rules,
regulations, instructions and policies; the centralized
nature of administration, accounting, hiring, training,
safety practices and procedures, and wage and benefits;
the regular daily interchange of drivers and equipment;
the geographic proximity of the terminals; the highly
interdependent nature of the Employer’s operational
structure; the lack of autonomy of the individual termi-
nal managers; and the common skills and functions of
drivers and monitors at the various locations.
My colleagues do not controvert the findings as to:
uniformity of rules, etc.; centralized nature of adminis-
tration, etc.; and the highly interdependent nature of
the operations. They disagree only as to local auton-
omy, common skills and functions, geographic proxim-
ity and interchange. As shown below, except as to
interchange, my colleagues are incorrect even as to
these factors.
As to local autonomy, I note that important matters
such as wages and formal discipline are not determined
by the local manager. I recognize that hiring, assign-
ments, dispatching, time off, and minor discipline are
within the province of the local terminal manager.
However, inasmuch as labor relations policies and pro-
cedures are centrally determined, it is clear that the
local manager must act within controlling parameters.1
My colleagues acknowledge that labor relations poli-
cies and procedures are centrally set. They focus on
the fact that some terms and conditions of employment
are locally determined within the central parameters.
However, I note that wages and formal discipline are
the terms and conditions that are not locally set. In my
view, the amount of compensation to be received, and
the prospect of losing one’s job through formal dis-
cipline, are among the most important of terms and
conditions of employment. Thus, it is very significant
that these terms and conditions are not locally deter-
mined.
With respect to skills and functions, my colleagues
point to the fact that there are monitors for special
education children at Shelton. However, there are also
such monitors for special education children at two
other locations.
As to geographic proximity, the seven terminals are
located between 3 and 21 miles from headquarters in
Prospect, Connecticut. Although Shelton is more dis-
tant than most, it is not the furthest away, and the
mileages involved do not suggest geographic isolation.
Finally, although the other terminals have a signifi-
cant amount of interchange, I concede that Shelton has
less. However, this factor is insufficient to outweigh
the others, discussed above, which strongly support a
multifacility unit.
In sum, the Acting Regional Director has made a
reasoned and well-supported decision. I would not re-
verse him.
VerDate 11-MAY-2000 14:48 Apr 30, 2002 Jkt 197585 PO 00004 Frm 00163 Fmt 0610 Sfmt 0610 D:\NLRB\324.017 APPS10 PsN: APPS10