Rustman Bus Co., Inc.

National Labor Relations Board - Board Decisions

Nov 14, 1986

282 N.L.R.B. 152 (N.L.R.B. 1986)

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.