Roesch Lines, Inc.

National Labor Relations Board - Board Decisions

May 28, 1976

224 N.L.R.B. 203 (N.L.R.B. 1976)

ROESCH LINES, INC
Roesch Lines, Inc and Southern California District
Council of Laborers and its affiliated Laborers' In-
ternational Union of North America, Local 1184,
affiliated with Laborers ' International Union of
North America , AFL-CIO, Petitioner Case 21-
RC-14050
May 28, 1976
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held before Hearing Officer Joseph M
Connors Following the hearing and pursuant to Sec-
tion 102 67 of the National Labor Relations Board
Rules and Regulations and Statements of Procedure,
Series 8, as amended, and by direction of the Region-
al Director for Region 21, this case was transferred to
the National Labor Relations Board for decision
The Board has reviewed the Hearing Officer's rul-
ings made at the hearing and finds that they are free
from prejudicial error They are hereby affirmed
Upon the entire record in this proceeding, the
Board finds
I Petitioner petitioned for a unit consisting of all
of Employer's employees employed at the San Ber-
nardino, Riverside, and Palm Springs, California, fa-
cilitiesI The employees sought by Petitioner include
all charter bus drivers, schoolbus drivers, mechanics,
and maintenance personnel Employer contends that
the Board should not assert jurisdiction over what is
an essentially local schoolbus operation servicing pri-
marily political subdivisions of the State of Califor-
nia Assuming that the Board asserts jurisdiction,
Employer further contends that the unit found ap-
propriate should be limited to charter bus drivers at
Employer's Riverside and San Bernardino locations,
thereby excluding all schoolbus drivers, mechanics,
and maintenance personnel 2
On November 12, 1975, Associated Charter Bus
Company, San Bernardino Division, a wholly owned
subsidiary of ARA Services, Inc, filed motions to
intervene, to dismiss the petition, and to remand pro-
ceedings and reopen hearing, on the ground that Em-
ployer has lost the contract for provision of school-
bus transportation services to the San Bernardino
Unified School District, and that such services are
now being provided by Associated Charter Bus Com-
i Petitioner, however, has also expressed its willingness to participate in
an election directed in any one of several alternative units or in any unit
found appropriate by the Board
2
This would exclude all Palm Springs drivers since the Palm Springs
location apparently is not engaged in the provision of nonschool-related
charter bus services
203
pany Thereafter, the Board issued a Notice To Show
Cause, requesting that all parties indicate "why the
facts asserted by Associated Charter Bus Company
should not be regarded as true and whether the Em-
ployer continues to be engaged in the provision of
any school bus transportation services within the
geographical areas covered by the petition " Thereaf-
ter, on February 6, 1976, Petitioner filed a response
to the Notice To Show Cause which acknowledged
that Associated Charter Bus Company is now pro-
viding schoolbus transportation service to the San
Bernardino Unified School District Employer did
not file a response to the Notice To Show Cause In
light of the foregoing, we conclude that Employer is
no longer engaged in the provision of schoolbus serv-
ices to the San Bernardino Unified School District
Accordingly, we hereby grant the motion of Associ-
ated Charter Bus Company to intervene in this pro-
ceeding and its motion to dismiss the petition, but
only insofar as it relates to Petitioner's request to rep-
resent schoolbus drivers providing services to the San
Bernardino Unified School District In all other re-
spects, the motions of Associated Charter Bus Com-
pany are hereby denied
Employer is a California corporation engaged in
the transportation of passengers and baggage in
southern California and adjoining States Pursuant to
contracts with the Riverside Unified School District
and the Riverside County superintendent of schools,
Employer provides schoolbus services to the River-
side Unified School District and to the County of
Riverside for the transportation of handicapped chil-
dren to and from Palm Springs Unified School Dis-
trict schools 3
During calendar year 1974, Employer's gross reve-
nue exceeded $2,400,000 which included revenue de-
rived from the provision of charter bus services val-
ued at $1,100,000 and the provision of schoolbus
services valued at $1,300,000 Of the latter figure,
$50,000 was for services provided to private nongov-
ernmental customers However, of the approximate-
ly $1,250,000 derived from the transportation of pu-
pils to and from schools on regularly assigned school
routes and field trips relative to the contracts be-
tween Employer and school districts, more than
$720,000 was derived from Employer's operations in-
volving the San Bernardino Unified School District
with respect to which the petition has been dismissed
Approximately $400,000 was derived from the provi-
sion of schoolbus services to the Riverside Unified
3 The record reflects that Employers contract with the San Bernardino
Unified School District for the provision of schoolbus services was to termi-
nate June 30 1975 According to Associated Charter Bus Company s mo-
tion to intervene Associated was awarded a contract by that district and
thereby replaced Employer with respect to the provision of schoolbus serv
ices to that district on October 31 1975
224 NLRB No 16
204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
School District and $125,000 was for schoolbus serv-
ices provided to the Palm Springs schools Of the
approximately $1,100,000 received from Employer's
charter bus service, $850,000 4 was derived from serv-
ices provided to private, nongovernmental, and non-
school-related customers Of the total charter service,
at least $300,000 was for transportation from Califor-
nia across state lines, approximately $50,000 of
which was for services rendered directly to customers
located outside of California During that same peri-
od, Employer purchased goods directly from custom-
ers outside California in excess of $50,000
In determining the jurisdictional issue involved
here, the Board must consider whether Employer is
exempt from the Act's coverage because of its con-
tractual relationships with the exempt employers,
Riverside Unified School District and the Riverside
County superintendent of schools 5 Where the serv-
ices performed by an independent contractor are in-
timately connected with the exempted functions of
the governmental entity, the Board has found that
the independent contractor shares the exemption 6
Here, the Board's inquiry therefore requires an ex-
amination of the relationship of the services per-
formed by Employer to the exempted functions of
the school districts
In this vein, the record reveals that, pursuant to its
contractual agreements with the school districts, Em-
ployer is required to comply with provisions of the
California Education Code, California Administra-
tive Code, California Vehicle Code, and any other
regulations prescribed by the State Board of Educa-
tion, State Department of Education, or any other
governing state or county agency relating to the safe
transportation of pupils or to the equipment or oper-
ation of the buses In addition, the school districts
have final approval over routes and scheduling, spec-
ify the types of buses to be used and the number
which must be available to insure uninterrupted ser-
vice, and require Employer to submit monthly re-
ports concerning miles driven, driver hours worked,
and fuel usage Schoolbus drivers, moreover, are re-
quired to engage in a State-mandated driver training
program This program, which involves between 40
4 Of this figure, approximately $800 000 was provided by the San Bernar-
dino location and $50,000 was provided by the Riverside location There are
almost no charter bus services provided by Employers Palm Springs facili-
ty
5 Sec 2(2) of the Act excludes from the definition of `employer ` any
wholly owned Government corporation or any State or political subdi
vision thereof '
6 See e g Transit Systems Inc 221 NLRB 299 (1975) Rural Fire Protec
tion Company 216 NLRB 584 (1975) (Member Fanning, dissenting on the
ground that the Board s application of the intimate connection standard has
included, as an important factor consideration of the amount of control
retained by an employer o%er the employment conditions of its employees)
to 60 hours of training,' is divided between a behind-
the-wheel portion and a classroom portion The
classroom portion is conducted by the director of
transportation, an employee of the Riverside School
District 8
While it is not mandatory that pupils be transport-
ed to school in school district buses, it is noteworthy
that, absent Employer's unsatisfactory performance,
the school districts may not engage any other em-
ployer to provide schoolbus services Nor does the
record suggest the existence of any commercial or
public transportation within the school districts in-
volved which is comparable to the transportation
services provided by Employer
In these circumstances, it is apparent that
Employer's provision of transportation services for
school districts is so intimately related to the school
districts' functions as to warrant the conclusion that
such services are, in effect, a municipal function We
therefore shall decline jurisdiction over Employer's
operations insofar as they involve the provision of
schoolbus services to school districts Accordingly,
with respect to employees requested by Petitioner
who are performing these services for the Riverside
Unified School District and the Palm Springs Uni-
fied School District, Employer shares the school dis-
tricts' exemptions from the Board's jurisdiction 9
In reaching this conclusion, we note, moreover,
that the Board traditionally has refused to assert ju-
risdiction over employers engaged primarily in local
bus services 10 Since Employer's school-related oper-
ations are essentially local in character and operate
primarily in aid of local communities and of the
State in the field of education, they do not qualify for
jurisdictional purposes under the Board's standard
governing transit systems
It is apparent, though, that Employer is also en-
gaged in transit operations other than schoolbus op-
erations which directly and indirectly affect com-
merce and which produce annual revenues in excess
of $250,000 Accordingly, we find that it would effec-
7 The state portion of the driver training program is exactly the same for
all schoolbus drivers Each district, however appears to have its own set of
regulations over and above state law that pertain strictly to that districts
operations Pursuant to contract, the school districts agree to share with
Emloyer one half of the cost of drivers ' wages during actual training time
8pThis is the school district representative who oversees Riverside's con-
tract with respect to routes and scheduling In addition he occasionally
holds drivers meetings
e Whether the school districts exercise sufficient control over these serv-
ices as would constitute a separate basis for declining jurisdiction here is a
matter we need not consider Member Fanning disagrees with this view for
reasons expressed in In 6 supra and fn It, infra
10 S L Lines, Inc, d/b/a Pacific Scenic Lines 164 NLRB 1179 (1967)
Camp Baumann Buses Inc and V S Buses Inc 142 NLRB 648 (1963),
Raybern Bus Service, Inc, 128 NLRB 430 (1960 ) In declining jurisdiction
the Board has ruled that such employers are not transit enterprises within
the jurisdictional standards of Charleston Transit Company 123 NLRB 1296
(1959)
ROESCH LINES, INC
tuate the purposes of the Act to assert jurisdiction
over Employer's operations only insofar as they in-
volve the provision of nonschool-related charter bus
services it
2 The labor organization involved claims to rep-
resent 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 Having determined to assert jurisdiction based
only upon Employer's nonschool-related charter bus
services, the nonexempt aspect of Employer's opera-
tions, the issue remains as to what constitutes the
appropriate unit for purposes of collective bargain-
ing In light of our jurisdictional finding herein, we
further conclude that the unit found appropriate
should be limited to employees of the Employer who
are engaged in the provision of nonschool-related
charter bus services The record reveals, however,
that while Employer employs a number of regularly
assigned schoolbus drivers and regularly assigned
charter bus drivers, schoolbus drivers may devote a
considerable portion of their time to performing
charter bus services for nonschool customers The
record also indicates that there is frequent inter-
change of drivers between Employer's different loca-
tions 12 In addition, Employer has a number of stand-
by or relief drivers who regularly perform both
charter services and schoolbus services, thus func-
tioning in a dual capacity 13 In accordance with prin-
ciples enunciated in Berea Publishing Company,14
11 For reasons expressed in We Transport Inc and Town Bus Corp 215
NLRB 497 (1974), Members Fanning and Jenkins would assert jurisdiction
over Employer's entire operations including Employer 's schoolbus opera-
tions As expressed in his dissenting opinion in Rural Fire Protection Compa
ny, 216 NLRB 584 (1975), Member Fanning is of the view that in resolving
the jurisdictional issue here the Board , as in the earlier cases should focus
on the amount of control Employer has retained over the employment con-
ditions of its employees Member Fanning's consideration of the record here
persuades him that Employer has sufficient control over the employment
conditions of all of its employees to warrant the conclusion that meaningful
bargaining could take place without approval or participation of the school
districts
]z
At the time of the hearing 20 to 25 percent of Employers manpower
overall was devoted to charter services While at the Riverside facility only
about 5 percent of worktime was devoted to charter driving it is also appar-
ent that the transfer of drivers between Riserside and San Bernardino oc-
curred almost daily
13 Although relief drivers work on an on-call basis they are not part time
employees Rather they work steadily and generally average almost as
many hours per week as the regular schoolbus and charter bus drivers
14 140 NLRB 516 (1963) See also Raymond A Gartman d/b/a WGK Ra
dio 201 NLRB 763 776 (i973) (dual-function employee performing unit
205
drivers performing both charter bus services and
schoolbus services should be included in the unit if
they perform charter bus services for sufficient peri-
ods of time to demonstrate that they have a substan-
tial interest in the unit's working conditions 15
Petitioner also seeks to represent mechanics and
maintenance personnel The school districts exercise
no control over the working conditions of the service
and maintenance employees In light of the central-
ized control of labor relations for Employer's loca-
tions, the interchange and contact among all employ-
ees of Employer's different locations, and the shared
uniform fringe benefit policies of all employees at all
of Employer's locations, we shall include service and
maintenance personnel in the unit found appropri-
ate 16
Conclusion
Upon the entire record and for the aforementioned
reasons, we shall direct an election among employees
in the following unit, which we have found to be
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act
All charter bus drivers, relief charter bus drivers,
mechanical employees and cleanup employees
employed by the Employer at its Palm Springs,
Riverside, and San Bernardino locations, ex-
cluding all office clerical employees, schoolbus
drivers and relief schoolbus drivers employed by
the Employer at all its locations 17 and guards
and supervisors as defined in the Act
[Direction of Election and Excelsior footnote omit-
ted from publication I
work approximately 25 percent of the time included in unit), Kraft Foods
Division of Kraftco Corporation 198 NLRB 632 (1972), Florida Southern
College 196 NLRB 888, 890 (1972)
15 At the time of the hearing there were approximately 85 regularly as
signed schoolbus drivers at the San Bernardino facility Since Employer is
no longer providing schoolbus services to the San Bernardino Unified
School District it is not apparent what duties , if any, these drivers are now
performing or whether they are still employed by the Employer
16 At the time of the hearing , Employer's Palm Springs operation was
concerned essentially with the busing of handicapped children to facilities
specially equipped and staffed to accommodate handicapped students Al-
most no charter bus services emanate from Palm Springs The record re-
veals however that one employee at the Palm Springs location functions as
a combination relief driver and maintenance employee Since it is not clear
from the record whether this employee s maintenance duties would give him
a community of interest with other unit employees sufficient to warrant his
inclusion in the unit, we shall permit him to vote subject to challenge
" This excludes all of Palm Springs' regular schoolbus drivers