National Transportation Service, Inc.

National Labor Relations Board - Board Decisions

Aug 31, 1977

231 N.L.R.B. 980 (N.L.R.B. 1977)

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.]
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