Ryder Student Transportation, Inc.

National Labor Relations Board - Board Decisions

Nov 21, 1989

297 N.L.R.B. 371 (N.L.R.B. 1989)

RYDER STUDENT TRANSPORTATION 371
Ryder Student Transportation, Inc. and Teamsters,
Chauffeurs, Warehousemen & Helpers, Local
Union 542, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, AFL—CIO.
Case 21-CA-26351
November 21, 1989
DECISION AND ORDER
BY MEMBERS CRACRAFT, HIGGINS, AND
DEVANEY
On April 13, 1989, Administrative Law Judge
Joan Wieder issued the attached decision The
General Counsel filed exceptions and a supporting
brief The Respondent filed, cross-exceptions and a
supporting brief, as well as a brief in opposition to
the General Counsel's exceptions 1
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board has considered the decision and the
record in light of the exceptions and briefs 'and has
decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order
The Respondent is alleged to have violated Sec-
tion 8(a)(5) and (1) of the Act by refusing to bar-
gain with the Union as the certified bargaining rep-
resentative of the Respondent's employees em-
ployed at the Alpine Union School District in
Alpine, California 2 The Respondent admits that it
'Attached to the Respondent's bnef in opposition to the General
Counsel's exceptions is a document entitled 'Proposed Agreement,"
which purports to be a collective-bargaining agreement entered Into be-
tween the Respondent and the Union on February 17, 1989, covering the
San Diego employees The Respondent requests that the Board reopen
the record and receive the alleged agreement Into evidence The Re-
spondent also filed a separate motion to reopen the record for the pur-
pose of introducing into evidence a letter from an Alpine employee, ac-
companied by a petition purportedly signed by 14 other Alpine employ-
ees, suggesting that they no longer wish to be represented by the Union
The individual letter, as well as the petition purportedly signed by the 14
Alpine employees, is dated May II, 1989 Both of the Respondent's mo-
tions concern events occurring after the close of the hearing, which
would not alter the result in this case even assuming arguendo that the
facts alleged by the Respondent are true Therefore, the motions do not
provide a proper basis for reopening the proceeding See Presbyterian
Hospital, 285 NLRB 935 (1987), K & E Bus Lines, 255 NLRB 1022
(1981) Accordingly, the Respondent's motions to reopen the record for
these purposes is denied
The Respondent also filed a motion to stnke the General Counsel's
brief in support of exceptions alleging, as grounds therefor, that the brief
lacks the specificity required under Sec 102 46(c)(2) of the Board's
Rules Having duly considered the matter, we find the General Counsel's
brief to be in compliance with the Board's Rules and Regulations, as
amended, and, accordingly, deny the Respondent's motion to strike the
General Counsel's brief
2 The Union was certified by the Board on August 3, 1988, in Case 21-
RC-18170 as the exclusive bargaining representative of all full-time and
regular part-time employees, including drivers and dispatchers, employed
by the Respondent at its facilities in San Diego and Alpine, California
Although the complaint alleges that the Respondent refused to bargain
with the Union concerning both the San Diego and Alpine employees,
has refused to bargain with the Union concerning
its Alpine employees, but denies that its conduct in
this regard is unlawful It contends, rather, that the
Alpine employees' terms and conditions of employ-
ment are substantially controlled by the Alpine
School District, a political subdivision of the State
exempt from the Board's jurisdiction under Section
2(2), and that it consequently lacks the ability to
engage in any meaningful bargaining with the
Union concerning these employees The Respond-
ent therefore asserts that under Res-Care, Inc , 280
NLRB 670 (1986), 3 the Beard should decline to
assert jurisdiction over it with respect to its Alpine
employees
Initially, the judge found that the question
whether the Board should assert jurisdiction over
the Respondent had been timely raised by the latter
in its answer to the complaint and at the start of
the hearing She further found, in agreement with
the Respondent, that the Alpine School District ex-
ercised substantial control over the Alpine drivers
on a day-to-day basis and that the Respondent
therefore lacked sufficient control over the Alpine
drivers' working conditions to enable it to engage
in any meaningful bargaining with the Union con-
cerning those employees The judge concluded that
in these circumstances the Board should, under
Res-Care, supra, decline to assert jurisdiction over
the Respondent, and in her recommended Order
proposed that the matter be remanded to the Re-
gional Director for withdrawal of the complaint
In the exceptions and brief to the Board, the
General Counsel contends, inter aim, that the judge
erred in finding that the Respondent timely raised
the question of the Board's jurisdiction over it We
agree with the General Counsel
Although, as the judge correctly points out, a
question concerning the Board's statutory jurisdic-
tion may be raised at any time, a question concern-
ing the Board's exercise of its discretionary author-
ity must be raised in a timely manner 4 The Board
the parties agree, and the judge found, that the Respondent has been will-
ing to bargain and has in fact bargained with the Union concerning the
San Diego employees Thus, the sole issue here is whether the Respond-
ent unlawfully refused to bargain with the Union concerning its Alpine
employees
3 In Res-Care, the Board reaffirmed the basic 'right of control" test
enunciated in National Transportation Service, 240 NLRB 565 (1979), for
determining when It would be appropriate to assert jurisdiction over an
employer providing services to or for an exempt entity The Board in
Res-Care stated that in applying the test, its examination would not be
limited to the control over the essential terms and conditions of employ-
ment retained by the employer, but would also Include an examination of
the "scope and degree of control exercised by the exempt entity over the
employer's labor relations, to determine whether the employer is capable
of engaging in meaningful collective bargaining" 280 NLRB at 672
4 Anchortank, 233 NLRB 295 fn 1 (1977), Gateway Motor Lodge, 222
NLRB 851, 852 (1976), Pollack Electric Ca, 214 NLRB 970 (1974) See
also Empire Dental Co, 211 NLRB 860 (1974)
297 NLRB No 55
372 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
held in Res-Care, supra, that when an employer
itself meets the statutory definition of "employer"
under Section 2(2), and is involved with an entity
exempt from the Board's jurisdiction, the sole in-
quiry is whether the Board, in exercising its discre-
tion, should decline to assert jurisdiction because of
the extent to which the exempt entity controlled
the employment conditions of the nonexempt em-
ployer's employees 280 NLRB 670 fn 1 The Re-
spondent does not contend that it is a governmen-
tal entity statutorily exempt from the Board's juris-
diction under Section 2(2) 5 Thus, the sole issue
before the Board in this case involves the Board's
exercise of its discretionary jurisdiction Contrary
to the judge, we find that this issue was not raised
in a timely manner
The record shows that in early May 1987, the
Respondent entered into a 3-year agreement with
the Alpine School District whereby it agreed to
provide transportation for school children in that
school district On April 11, 1988, the Union filed
its petition in Case 21-RC-18170 seeking, as noted,
to represent the Respondent's employees employed
at its San Diego and Alpine facilities On May 11,
1988, the Respondent and the Union entered into a
Stipulated Election Agreement in which they
agreed to the terms of an election and to the ap-
propriateness of the unit petitioned for by the
Union The parties stipulated in the agreement that
the Respondent was "engaged in commerce within
the meaning of Sec 2(6) and (7) of the Act" Pur-
suant to that agreement, a Board-conducted elec-
tion was held on June 10, 1988, which the Union
won As no objections were filed to the conduct of
the election, the Board on August 3, 1988, certified
the Union as the exclusive bargaining representa-
tive of all employees in the petitioned-for unit
At no time during the representation proceeding
did the Respondent claim that the Board lacked ju-
risdiction over it concerning its Alpine employees
This, despite the fact that the Respondent had been
providing transportation services to the Alpine
School District for more than 7 months prior to
the date that the Union filed its representation peti-
tion seeking to represent these employees and other
employees of the Respondent 6 The Respondent
5 The Respondent contends, inter aim, that it is a Joint employer with
the Alpine School District and, for this reason, should be found to share
its statutory exemption We find no merit in its contention for, in consid-
ering whether or not to assert Jurisdiction over an employer in this type
of case, the Board does not focus on whether there is a Joint employer
relationship between the employer and the governmental entity Old Do-
minion Security, 289 NLRB 81, 83 fn 2 (1988)
6 Although the Respondent and the Alpine School District entered
into their transportation agreement in May 1987, the record indicates that
the Respondent began providing its transportation services in September
1987
thus had the opportunity in the representation pro-
ceeding to contest the Board's assertion of jurisdic-
tion over it but chose not to do so The Board has
stated that in the absence of newly discovered or
previously unavailable evidence or special circum-
stances, a respondent in a proceeding alleging a
violation of Section 8(a)(5) and (1) is not entitled to
relitigate issues that were or could have been liti-
gated in a prior representation proceeding 7 The
question of the Board's assertion of its discretion-
ary jurisdiction over the Respondent was or could
have been litigated in the prior representation pro-
ceeding However, it was not until after the com-
plaint in the instant case issued that the Respond-
ent, in its answer, asserted for the first time that the
Board lacked jurisdiction over it Having failed to
raise the jurisdictional defense during the represen-
tation proceeding, the Respondent is precluded
from doing so in the instant unfair labor practice
proceeding 8 Having rejected the Respondent's ju-
risdictional defense as untimely, we conclude that
the Board properly has jurisdiction over the Re-
spondent in this matter 9 Further, in view of the
fact that the Union is the lawfully certified bargain-
ing representative of the Respondent's Alpine em-
ployees, we find that the Respondent's admitted re-
fusal to bargain with the Union concerning these
employees violated Section 8(a)(5) and (1) of the
Act, as alleged
CONCLUSION OF LAW
By refusing on and after August 17, 1988, to bar-
gain with the Union as the exclusive collective-bar-
gaining representative of employees in the appro-
priate unit, the Respondent has engaged in unfair
labor practices affecting commerce within the
meaning of Section 8(a)(5) and (1) and Section 2(6)
and (7) of the Act
REMEDY
Having found that the Respondent violated Sec-
tion 8(a)(5) and (1) of the Act by refusing to bar-
gain with the Union concerning its Alpine employ-
ees, we shall order it to cease and desist from en-
gaging in such conduct and, on request, to bargain
collectively with the Union as the exclusive repre-
sentative of all employees in the unit for which it
was certified and, if an understanding is reached, to
embody such understanding in a signed agreement
To insure that the employees in the appropriate
unit are accorded the services of their selected bar-
7 Gateway Motor Lodge, supra at 852
B Hanna Boys Center, 293 NLRB 359 (1989)
9 In view of our assertion of jurisdiction over the Respondent in this
case, we deem it unnecessary to pass on the Judge s additional findings
RYDER STUDENT TRANSPORTATION 373
gaining agent for the period provided by law, we
shall construe the initial penod of certification as
beginning on the date the Respondent begins to
bargain in good faith with the Union Mar-Jac
Poultry Go, 136 NLRB 785 (1962), Lamar Hotel,
140 NLRB 226, 229 (1962), enfd 328 F 2d 600 (5th
Cir 1964), scer't denied 379 U S 817 (1964), Burnett
Consthiction Go, 149 NLRB 1419, 1421 (1964),
enfd 350 F 2d 57 (10th Cir 1965) ,
ORDER
The National Labor Relations Board orders that
the Respondent, Ryder Student Transportation,
Inc , San Diego and Alpine, California, its officers,
agents, successors, and assigns, shall
1 Cease and desist from
(a) Refusing to bargain with Teamsters, Chauf-
feurs, Warehousemen and Helpers, Local Union
542, affiliated with the International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, AFL-CIO as the exclusive
bargaining representative of the employees in the
following appropriate unit .
All full-time and regular part-time employees,
including drivers and dispatchers employed by
the Employer at its facilities at 6996-A Mis-
sion Gorge Road, San Diego, California, and
1323 Administration Way, Alpine, California,
excluumg mechanics, office clerical employees,
guards and supervisors as defined in the Act,
as amended
(b) in any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them in Section 7 of
the Act
2 Take the following affirmative action neces-
sary to effectuate the policies' of the Act
(a) On request, bargain with the Union as the ex-
clusive representative of the employees in the
above-described appropriate unit on terms and con-
ditions of employment and, if an understanding is
reached, embody the understanding in a signed
agreement
(b) Post at its facilities in Alpine and San Diego,
California, copies of the attached notice marked
"Appendix " i ° Copies of the notice, on forms pro-
vided by the Regional Director for Region 21,
after being signed by the Respondent's authorized
representative, shall be posted by the Respondent
for 60 consecutive days in conspicuous places in-
cluding all places where notices to employeeS are
I ° If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading `Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board"
customarily posted Reasonable steps shall be taken
by the Respondent to ensure that the notices are
not altered, defaced, or covered by any other mate-
rial
• (c) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice
WE WILL NOT refuse to bargain with Teamsters,
Chauffeurs, Warehousemen & Helpers, Local
Union 542, affiliated with the International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, AFL-CIO as the exclu-
sive representative of the employees in the follow-
ing bargaining unit
All full-time and regular part-time employees,
including drivers and dispatchers employed by
the Employer at its facilities at 6996-A Mis-
sion Gorge Road, San Diego, California and
1323 Administration Way, Alpine, California,
excluding mechanics, office clerical employees,
guards and supervisors as defined in the Act,
as amended
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act'
WE WILL, on request, bargain with the Union
and put in writing and sign any agreement reached
on terms and conditions of employment for our
employees in the above-described bargaining unit
RYDER STUDENT TRANSPORTATION,
INC
Brian J Sweeney, Esq , for the General Counsel
'Theodore R Scott, Esq and Scott A Wilson, Esq (Littler,
Mendelson, Fastiff & TIchy), of San Diego, California,
for the Respondent
DECISION
STATEMENT OF THE CASE
JOAN WIEDER, Administrative Law Judge This case
was tried on December 6 and 7, 1988, in San Diego,
California The complaint, issued October 13, 1988, based
on a timely filed charge, alleges Ryder Student Trans-
374 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
portation Inc (Respondent or Company) violated Sec
tion 8(a)(5) and (1) of the Act by refusing to bargain col
lectively in good faith with Teamsters Chauffeurs War
ehousemen & Helpers Local Union 542 affiliated with
the International Brotherhood of Teamsters Chauffeurs
Warehousemen and Helpers of America, AFL-CIO (the
Union), since on or about August 17, 1988 Respondent
in its answer claims the Board should not exercise juns
diction over its operations for the Alpine Union School
District (Alpine or District) and denies committing any
unfair labor practices
All parties were provided opportunity to present oral
and documentary evidence, cross examine witnesses and
to present oral argument Postheanng briefs have been
received and considered
On the entire record including my observation of the
demeanor of the witnesses who were not sequestered
and after due consideration of all pleading and briefs I
make the following
FINDINGS AND CONCLUSIONS
I THE LABOR ORGANIZATION
The Union is admittedly a labor organization within
the meaning of Section 2(5) of the Act
II THE OPERATIONS OF RESPONDENT
Respondent a Florida corporation is engaged in the
business of transporting school children to and from
public schools, and operates facilities located in San
Diego and Alpine California Respondent admits that it
annually purchases and receives more than $50,000 in
goods services and materials from enterprises located
outside the State of California, which meets one or more
of the Board s jurisdictional standards The parties stipu
lated that the Alpine Union School District is a govern
mental entity within the meaning of Section 2(2) of the
Act
Respondent claims the terms and conditions of em
ployment of its employees servicing the District, a politi
cal subdivision of the State of California within the
meaning of Section 2(2) of the Act are substantially con
trolled by the District that Respondent does not have
control over important elements of collective bargaining
within the meaning of Res Care Inc 280 NLRB 670
(1986) Respondent does not deny jurisdiction concern
mg its San Diego, California operations
Respondent also claims that because the terms and
conditions of employment of the Alpine drivers are sub
stantially controlled by the District the unit described in
the complaint is not an appropriate unit within the mean
mg of Section 9(b) of the Act Respondent and the
Union executed on May 11, 1988, a Stipulated Election
Agreement 1 In this agreement the parties stipulated the
'Scott Wilson who worked for Respondent s counsel stated that he
did not know the terms of the contract between Ryder and the District
at the time he entered Into the Stipulation on behalf of Ryder He admit
ted his law firm also was involved in the negotiating of that contract but
indicated it was another section of the firm that specializes in public
sector work
following employees of Respondent constitute a unit ap
propnate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act
All full time and regular part time employees in
eluding drivers and dispatchers employed by the
Employer at its facilities at 6996-A Mission Gorge
Road San Diego California and 1323 Admimstra
tion Way Alpine California excluding mechanics
office clerical employees guards and supervisors as
defined in the Act as amended
The General Counsel argues that Respondent is es
topped or otherwise barred from asserting the unit is in
appropriate under Section 9(b) of the Act since it stipu
lated to the appropriateness of the unit and the Board s
jurisdiction in the representation proceedings and in the
alternative, claims Ryder retains sufficient control over
the essential terms and conditions of employment of its
Alpine employees to permit meaningful bargaining with
the Union
Respondent argues that under the Courts decision in
Bow v Greyhound Corp 376 U S 473 (1964), its status
as a joint employer with the District permits review of
the issue of appropriateness of the unit anterior to the
holding of an election Id at fn 6 The restriction on
review of the question of the appropriateness of the unit
after elections is in furtherance of the statutory scheme
of preventing the invoking of dilatory tactics in represen
tation proceedings However, the Court recognized that
in extraordinary circumstances review of orders entered
in certification proceedings has been permitted One such
instance cited involved the issue of whether the unit in
eludes both professional employees and employees who
are not professionals where the majority voting for the
unit were not professional employees The issue was not
the reasonableness of the unit but whether the Board
issued an order made in excess of its delegated powers
and contrary to a specific prohibition in the Act
Leedom v Kyne 358 U S 184 188 (1958)
A second cited situation id involved the question of
the application of the laws of the United States to for
eign flag ships and their crews In McCulloch v Sociedad
Nacional 372 U S 10 17 (1963) the Court found the
presence of public questions particularly high in the scale
of our national interest because of their international
complexion is a uniquely compelling justification for
prompt judicial resolution of the controversy over the
Board s power The issues in the instant proceeding are
not akin to those in Sociedad Nacional or &ire [citation
omitted]
I find that all material issues concerning the appropn
ateness of the bargaining unit had been or could have
been litigated in the prior representation proceeding
Case 21-RC-18170 Respondents were in possession of
the contract with the District at the time of the stipulat
ed election and they indicated it was appropriate to in
dude the Alpine drivers in the unit They did not offer
to present any newly discovered or previously unavail
able evidence Kendall College of Art, 292 NLRB 1065
(1989)
RYDER STUDENT TRANSPORTATION 375
However I find that the question of whether Ryder
shares the District's statutory exemption under Section
2(2) 2 of the Act can be raised now and is properly litiga-
ble in this unfair labor practice proceeding Consonant
with the Courts finding in Leedom v Kyne, supra, as the
Board held in Gateway Motor Lodge, 222 NLRB 851, 852
(1976)
In our view, while a question concerning the
Board's statutory jurisdiction may be raised at any
time, where a party contests the Board's assertion of
Jurisdiction under one of its discretionary standards,
the issue must be timely raised
See also Anchortank, Inc , 233 NLRB 295 fn 1 (1977)
The question of whether the Board should assert juris-
diction is grounded on the principals stated in National
Transportation Service, 240 NLRB 565 (1979), where it
was held that the inquiry is twofold, "whether the em-
ployer itself 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 organiza-
tion as their representative" As found in Res-Care, Inc ,
supra at fn 1
It is clear, and no party contends otherwise, that
Res-Care itself is not a Government agency,
and is thus not exempt from our jurisdiction under
Sec 2(2) of the Act It is also clear that Res-Care
employs "employees" as that term is defined in Sec
2(3) Our only inquiry, therefore, is whether, in ex-
ercising our discretion, we should decline to assert
jurisdiction because of the extent to which
[the] entity exempt from our jurisdiction, controls
the employment conditions of Res-Care's employ-
ees
The issue is not one of appropriateness of the unit, as
the General Counsel alleges, but whether the Board
should "decline 't'o assert jurisdiction because of the
extent to which [the District] controls the em-
ployment conditions of [Ryder's] employees" Thus the
issue of extent of control over employment is separate
and distinct from the question of appropriateness of the
unit . Ryder has unquestionably recognized the Union
See generally United States Pipe ci Foundry Co, 223
NLRB 1443 (1976), NLRB v Long Lake Lumber Co &
F D Robinson, 138 F 2d 363 (9th Cir 1943) Inasmuch
as this issue was raised in the answer to the complaint
and at the commencement of trial, I find the question of
whether the Board should assert its discretionary juris-
diction in this case was timely raised Accordingly, I will
examine whether Ryder's "labor relations policy is con-
2 Sec 2(2) of the Act provides
The term 'employer" includes any person acting as an agent of an
employer, directly or indirectly, but shall not Include the United
States or any wholly owned Government corporation, or any Feder-
al Reserve Bank, or any State or political subdivision thereof, or any
person subject to the Railway Labor Act, as amended from time to
time, or any labor organization (other than one acting as an employ-
er), or anyone acting in the capacity of officer or agent of such labor
organization
trolled to such a degree by the [Distnct] that effective
collective bargaining is precluded and that it should be
exempt from our jurisdiction under Section 2(2) of the
NLRA " Res-Care, Inc , supra
III THE ALLEGED UNFAIR LABOR PRACTICES
A Background
On June 10, 1988, the Union won a Board conducted
election by a vote of 40 to 39 with 2 challenged ballots
and 1 void ballot On August 3, in Case 21-RC-18170,
after resolution of the objections, the Board certified the
Union as the exclusive bargaining representative in the
above-described unit, which was found to be appropri-
ate The appropriateness of the unit or the status of the
Alpine employees were not issues raised in the represen-
tation proceedings Respondent admits the Union, since
June 29, and at all times thereafter, has requested Ryder
bargain concerning the entire unit, including the Alpine
contingent
It is undisputed Respondent has failed and refused to
negotiate with the Union concerning the employees serv-
icing the Alpine schools On or about August 17, after
the parties' second negotiating session, Respondent s noti-
fied the Union that it would not bargain with the Union
over matters concerning employees at Alpine, claiming it
was a "public facility" Respondent admits refusing to
bargain with the Union respecting its Alpine employees
The Union has never agreed to the exclusion of the
Alpine employees from the bargaining unit The parties
stipulated that Respondent, at all material times, has been
ready, willing and able to negotiate with the Union re-
specting the San Diego 4 drivers and has so negotiated
Respondent entered into an agreement with the Dis-
trict on May 20, 1987, for the provision of schoolbus
services The agreement has a term of 3 years commenc-
ing September 1987 and ending June 1990 The services
were previously provided by Paul's Line Paul's Line's
drivers were offered the opportunity for employment
with Ryder when it contracted to provide schoolbus
services for the District That provision of the contract
was included at the request of Kandi Nack, the District's
director of transportation
As a District employee, Nack receives a salary, and
she still drives a bus route Ryder does not pay for her
services nor is there any reimbursement by Ryder to the
District for her services Her duties in regard to the driv-
ers are the same as an employee of the District as they
were with Paul's Line Her duties were expanded when
she became a District employee on July 1, 1986, while
3 Respondent omitted the Alpine drivers from its proposals at the first
negotiating session in the latter part of June The afternoon after the
second negotiating session, the Union's representative, Jack Ross asked
the Company s representative, Milton' Hauser, why Alpine had been ex-
cluded from the proposal This exclusion was not considered a formal
proposal to exclude the Alpine drivers, it may have been an oversight,
thus the inquiry was made at the second session about the basis for the
exclusion
4 Respondent has contracts to provide transportation to the San Diego
Unified School District, National City School District and three private
schools in the San Diego area These contracts are administered from Re
spondent's facility at 6996-A Mission Gorge Road, San Diego, Califor-
nia Ryder had about 104 employees at the San Diego location
376 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Paul's Line was still operating under a contract with the
District
According to Nack
A I'm in charge of all of the requirements for
school busing within the Alpine School District
I'm in charge of and handle all of the parental com-
plaints, both towards bus drivers or towards hap-
penings on the buses I deal with anybody from the
administrator down to teachers to parents to bus
drivers
Q And what, if any, duties do you have with re-
spect to personnel—to work with bus drivers in the
distnct9
A I handle all of their day-to-day responsibilities
Alpine uses about 13 regular full-time drivers, of
which about 11 availed themselves of the privilege of
transferring to Ryder from Paul's Line 5 The District
also has a permanent substitute driver, Arthur Martin-
son 6 They are all paid by Ryder Nack also requested
that their wages be at the rate of no less than $7 per
hour or their present rate of pay, which ever was great-
er, but not to exceed $8 per hour, Ryder agreed This
pay rate is higher than that paid the San Diego drivers
working for Respondent
The District operates schools at three locations serving
about 1400 pupils About 88 percent of the pupils are
transported under the Ryder contract
B Ind= of Control of Terms and Conditions
of Employment
1 The contract
The contract between Ryder and the District, signed
by the general manager of Ryder on May 11, 1987, and
by the District on May 20, 1987, contains language
which is somewhat indicative of the amount of control
over terms and conditions of employment the Respond-
ent retains and whether it is sufficient to permit meaning-
ful bargaining with the Union Portions of the contract
provide as follows
7 Drivers
a For the purposes of this Contract and interpre-
tation thereof, it is agreed that the transportation of
school children is an unusual and specialized func-
tion It is the essence of this Contract that the stu-
dents are to be transported to and from classes or
5 Of the 11 drivers retained by Ryder, 6 are current District employ-
ees, Art Martinson, Jack Sutton, Judy LaRocque, John Evanich, Carol
Mundy, and Fay Anderson None of the drivers from Paul's Line wish-
ing employment at Ryder were rejected
6 Martinson is on call He is paid $8 per hour, the highest wage paid
any Alpine driver, because he came Into the contract at $7 75 per hour
When there is a need for more than one substitute driver, others are ob-
tained from Ryder The need for substitute drivers arises several times a
week The drivers are to report their absence to Nack by 5 a m, and she
then calls Ryder after 5 a m to have a substitute dispatched to Alpine
These substitutes are not required by Nack to sign in and out, while the
regular Alpine drivers must sign in and out There are times the substi-
tutes are not checked out by Nack Ryder bills the District for the substi-
tute drivers, as provided in the contract They are paid the lower San
Diego wage rate
events regularly, promptly, safely, and without
interruption or incident and that the interests of the
children in such transportation shall take prece-
dence over the interests of either the Contractor
and its dnvers or the district It shall be the primary
obligation of Contractor [Respondent] to operate its
affairs so that the District will be assured of this
continuous and reliable service It is recognized that
for the protection of the children, drivers, and all
other persons coming in contact with the children,
that the drivers must be of stable personality and of
the highest moral character The District places
upon the Contractor and the Contractor agrees to
accept the full responsibility of assuring such quali-
ties in personnel The Contractor agrees that he will
not allow any person to drive a school bus whose
moral character is not of the highest level, or whose
conduct might in any way expose any child to any
impropriety of word or conduct whatsoever, nor
shall Contractor allow any person to drive a school
bus who is not at the time in a condition of mental,
physical, and emotional stability
b The responsibility and liability for hiring and
discharging personnel in respect to all of the fore-
going shall rest entirely upon the Contractor
c The Contractor shall give first right of employ
to those operators presently driving buses in the
Alpine Union School District These operators will
be employed by the Contractor at no less than $700
per hour or their present rate of pay, whichever is
greater, but not to exceed $8 00 per hour Drivers'
rate of pay shall be increased annually, at the same
rate of the CPI for All Urban Consumer or a maxi-
mum of five (5) percent over the existing rate of
pay Workers' compensation, unemployment insur-
ance and FICA will be provided for each driver by
Contractor
d All drivers employed by the Contractor to
transport students under this agreement shall hold a
valid California Special Drivers Certificate issued
by the California Highway Patrol and must pass the
first aid test given by the California Highway
Patrol [7]
e In addition to drivers included to drive buses
provided by Contractor, the Contractor shall pro-
vide up to eight (8) trained drivers, acceptable to
the District, to drive District-owned buses in a safe
manner The District agrees to reimburse Contrac-
tor the actual wages paid to District-requested driv-
ers not to exceed eight ($8 00) per hour The Dis-
trict shall also reimburse the Contractor the actual
costs of workers' compensation insurance, unem-
ployment insurance and FICA for each District-re-
quested driver
f It is expressly understood and agreed by both
parties that all drivers are not the employees or
agents of the District, but are solely the employees
of Contractor [Emphasis added ]
7 This section of the contract merely reiterates codified requirements of
the laws of the State of California applicable to operations of school
buses
RYDER STUDENT TRANSPORTATION 377
g At the District's request, drivers may be called
into work when school is not in session for training
or in-service The drivers shall be paid their hourly
rate of time actually spent at the in-service or train-
ing when called by the District The District shall
reimburse the Contractor for actual wages paid to
the Drivers for these training or in-service sessions
The District shall not be charged for the cost of bus
operation for these in-service or training sessions
h Each prospective driver shall meet with the
District Transportation Supervisor for indoctrina-
tion and evaluation Contractor shall immediately
replace drivers not acceptable, at the District's re-
quest The District shall be immediately notified of
the suspension or revocation of any driver's driving
license issued by the California Highway Patrol for
operation of school buses
1 Contractor agrees to maintain an on-call substi-
tute driver list for Alpine Union School District,
this list to be in the possession of the Alpine Union
School Distnct
9 Routes
a The District shall have complete control of
routing and dispatching and have the right to
change any routes so that they are the most direct
and efficient possible, that they will serve the most
pupils with the least number of miles traveled, and
in the safest possible manner
b The Contractor agrees that the District may,
at its option, from time to time, and as often as nec-
essary
(1) Designate additional routes over which
pupils are to be transported,
(2) Add additional or reduce mileage to any
route,
(3) Require extra trips in addition to the routes
provided,
(4) Change the starting or return time of any
or all routes
The Contractor shall not transport any person
other than a student regularly enrolled in the Dis-
trict's school or any employee of the District with-
out the permission of the District first obtained
10 Accidents
a The Contractor shall keep complete and accu-
rate records of each accident and will make its
records available to the District upon request
12 Maintenance of Records
a The Contractor shall agree to maintain such
records and to make such reports to the District
which will enable the District to apply to the State
Department of Education for reimbursement for
pupil transportation For this purpose the provisions
of the Education Code and the Rules and Regula-
tions adopted by the State department of Education
shall be a part of the contract
14 Contractor as Independent Contractors
a It is expressly understood and agreed to by
both parties that the Contractor while engaged
carrying out and complying with the terms and
conditions of this agreement, is an independent con-
tractor and not an official agent or employee of the
District 8
The contract was amended one or more times an late
1987 to provide for the operation of additional buses 9
There was also a request, which was met by Respondent,
for at least one additional driver to operate this addition-
al equipment at the contract wage of $7 per hour On
January 19, 1988, the agreement was again modified to
include the lease of a minibus Another bus was added
pursuant to a request by Rob Turner," District business
manager, dated November 28, 1988
In May 1988, Respondent and the District agreed to
use the March All Urban Cost Price Index (CPI) to in-
crease drivers' salaries and to apply the increase to the
contract rates for the next year Subsequently, Ryder re-
ceived a letter from the District indicating that under the
Contract there was no basis to increase rates Ryder has
not responded to this letter from the District See foot-
note 8
2 Terms and conditions of employment
a Drivers Handbook
All Ryder drivers receive Respondent's "Drivers
Handbook," including those working at Alpine The par-
ties stipulated all drivers sign that they have received a
copy of the handbook The policy is applied nationwide
The handbook has the following caveat, "this Driver's
Handbook does not take precedence over State or local
laws, rules or regulations or over local Ryder Student
Transportation Services or school policies" Nack has
never been provided a copy and has never discussed it
with Ryder
John Helm, Respondent's senior operations manager,
testified at length concerning the applicability of the
Counsel for the General Counsel notes that a letter wntten by the
Distnces counsel, who works for the same firm as the Respondent's
counsel, contends the bus rates were not to change for the life of the
agreement, claimed, absent fraud and imposition, the agreement is bind-
ing Citing Goldner v Jaffe (1959), 171 Cal App 2d 751, 755, Pahnquist v
Mercer (1954) 43 Cal 2d 92, 98
The letter further states
If a person has signed an agreement he is estopped from saying
that its provisions are contrary to his/her intentions or understand-
ing Smith v Occidental & Oriental Steamship Co, 99 Cal 462 at 470-
471, See also, Nicols v Hitchcock Motor Co, 22 Cal App 2d 151„
153
Further, Ryder has no argument that the contract Is ambigu-
ous The terms of the Agreement are clearly unambiguous If the
terms of the agreement are clearly unambiguous, it is the duty of the
court to enforce the contract as wntten and agreed upon by the par-
ties Division of Labor Standards Enforcement v Dick Bulhs Inc
(1977) 72 Cal App 3d Supp 52, 57
Respondent did not reply to this letter I do not find this letter chspositive
of the Issue of whether Ryder has sufficient control over employment
conditions to permit It to engage in meaningful bargaining
9 The contract, by paragraph 6(i) permits the district to contract for
additional buses, and excess mileage and excess bus driver time would be
prorated
10 Turner is Nack's supervisor
378 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
handbook to its employees working at Alpine Accord-
ing to Helm, many of the nghts and obligations detailed
in the handbook have been applied to the drivers at
Alpine since the inception of Ryder's contract with the
District Respondent also has an Operations Manual
which has many policies which are similar to those im-
posed at Alpine Nack testified without contradiction
that most of these policies were applied to Alpine drivers
prior to Respondent commencing operations for the Dis-
trict For example the District still maintains its own re-
porting form for recording bus defects, has its own uni-
form policy and it's own call-in procedure Nack has
never been given a copy of the manual
Most of the provisions of the manual relating to driv-
ers apply to the drivers at both San Diego and Alpine
For example, the only deference in the provisions of sec-
tion 2 1 of the manual are the substitution of the trans-
portation manager at Alpine, Kandi Nack, for the loca-
tion contract manager at San Diego for a number of su-
pervisory duties, including initialing assignments and
changes in check-In times, initialing timecards where the
employee failed to use the timeclock, 1 ' bus assignments
and other scheduling duties, the absence of a service
manager at Alpine to review inspection reports, there are
different discipline policies and forms utilized by the dif-
ferent school districts throughout the country and Helms
was not sure if Alpine and San Diego use the same poli-
cies and forms, and, route changes are made by the
Alpine school district and administered by their transpor-
tation director, Nack, but the same changes in scheduling
occur in San Diego between the school district and the
contract manager
The provisions of the manual that apply to the Alpine
drivers, include most of the listed driver responsibilities,
preemployment standards, safety standards, including dis-
ciplinary policies for violations of safety standards, incor-
porating preventable accidents, and violations of the ve-
hicle codes, training standards, emergency procedures,
student discipline, transportation of handicapped/special
education students, maintenance standards, such as in-
spections and service calls, the controlled substance
policy, the policy concerning sexual harassment, the
smoking policy, recruitment policy, and, policies dealing
with the Immigration Reform and Control Act 12
According to Helms, the Alpine employees are also
subject to the manuals employee personnel policies deal-
ing with supervisory duties such as the employee profile
and change form, employee personnel files, protection of
employee personnel data, corrective discipline and invol-
untary termination, voluntary termination—resignation,
termination procedures, except where Nack performs
some functions in lieu of Ryder personnel such as proc-
11 After the commencement of the Ryder contract, Ryder changed the
method of check in and out Initially, there was a timeclock, but Ryder
subsequently initiated a sign-in procedure
12 Many of these polices were maintained by Alpine prior to contract-
ing with Ryder, including those relating to alcohol and drug abuse,
driver responsibility for maintaining student discipline and control,
having Illegal weapons on the bus, having animals on the bus, an appear-
ance code, and prohibiting the use of profanity Nack continued these
policies under the Ryder contract There is no evidence these policies are
antipodal to the terms of the contract or indicative of any abrogation of
overall responsibility by Ryder for their employees
essing some forms and ensuring the return of some com-
pany property, notification of some of Ryder's depart-
ments, and insuring the final paycheck is correct, sever-
ance procedures, rehire and reinstatement policies except
that Nack would be consulted if the employee was to be
rehired at Alpine, and, reemployment of veterans poli-
cies
In sum, almost all of the matters addressed in the
manual applicable to San Diego drivers are also applica-
ble to the Alpine drivers Some of these policies are re-
quired by State laws The manual is not distributed to
the drivers, however that does not affect its efficacy in
establishing policies concerning their working conditions
b Bonus
Respondent has an incentive bonus program for all its
drivers, including those working at Alpine It is a month-
ly and yearly bonus, based on attendance and driving
record It could total $30 per month and $175 for the
yearly bonus When Nack received a missive from Ryder
concerning the bonus plan, she posted it on a bulletin
board The terms and conditions of the bonus plan were
made available to Ryder employees nationally in January
1988, substantially after the contract with the District
was executed and implemented The bonuses are award-
ed in addition to the employee's wage rates According
to Helm, Rob Turner, the District's business manager,
approved the implementation of the bonus plan midterm
in the contract 13 Helm testified that he met with Turner
and
THE WITNESS I outlined briefly the plan and
that we were planning to implement it, that it was a
national plan, that we were excited about it as a
driver incentive, and he concurred that it sounded
like a good thing and agreed at that time to reim-
burse the bonuses which were paid to the drivers
who are reimbursable to Ryder, the Alpine drivers
Ryder set the amounts for the bonus plan Turner ap-
proved the plan, including District reimbursement to
Ryder for expenditures under the plan This approval
was without referral to the school Board, which Turner
now believes is necessary There is no evidence that the
District informed Turner he exceeded his authority in
approving the bonus plan, including District reimburse-
ment to Ryder for the bonuses His opinion was solely
based on his review of the contract
c Benefits at a glance
Respondent distributes to its employees a booklet enti-
tled "Benefits At a Glance" which details such benefits
as medical insurance, basic life insurance, supplemental
life insurance, accidental death or dismemberment insur-
ance, seat belt incentive insurance, an employee stock
purchase plan, pension plan, tuition aid program, and
credit union These benefits are available to all Ryder
13 Turner testified that he has authority to approve contract changes
only as specified in the agreement, otherwise he must be given the au-
thority from the District board
RYDER STUDENT TRANSPORTATION 379
drivers nationally According to Helm, these benefits
have been available to the Ryder drivers at Alpine since
the inception of the contract with the District Judy
Thompson, a current Ryder employee who transferred
from Alpine to San Diego because of lack of work at
Alpine, testified she availed herself of several of these
benefits while employed at Alpine I conclude there is no
question these benefits are available to all Alpine drivers
Helm admitted that Respondent can negotiate about
any and all of these benefits Nack testified if Ryder
were to provide its dnvers with vacation, sick, or funeral
leave, she could work with those policies Turner testi-
fied any changes in the contract for funeral or sick leave
would have to be brought before the school board The
evidence does not establish that Ryder could effectively
bargain with the Union about these benefits
Related to the medical benefits is the state requirement
that schoolbus drivers get a physical examination every 2
years Ryder permits all drivers, including those at
Alpine, the choice between using the Company's doctor
or their own physician
d Controlled substance policy
Respondent has a controlled substance policy which is
applicable to both the Alpine and San Diego drivers
The application of the policy to Alpine drivers is a com-
pany requirement, it was not requested by the District or
required by the contract with the District The drivers of
Paul's Line who were hired by Ryder were required to
undergo drug testing in September 1987, as a condition
to their employment with Respondent, even though the
testing was not required by the contract or requested by
the District In 1987, drug testing was not a national
policy applied to all Ryder drivers, it was a local policy
The State of California did not mandate such testing
e Hiring
Applicants for employment, whether at San Diego or
Alpine, are required to complete the same application
form and sign a statement which signifies their agree-
ment to submit to a drug test upon Ryder's request All
applicants, whether for Alpine or San Diego, also com-
plete a form entitled "Previous Employer Form" The
form was considered completed for former Paul's Lines
employees by merely writing on the application "this
employee's previous employer was Alpine" or something
similar They also must pass a state required physical
which determines that the applicant is capable of driving
a schoolbus Ryder has a company doctor they recom-
mend the applicants and/or employees use, but they may
choose any doctor Alpine drivers have the same access
to the company doctor as the San Diego drivers
When the contract with Paul's Line ended and Ryder
became the new contractor, Nack informed the Alpine
drivers they had the option to continue work as Ryder
employees The former Paul's Line drivers had to com-
plete the above-mentioned requirements, including the
Company's drug test The Alpine drivers, when they
switched from Paul's Line to Ryder also had to complete
a form entitled "School Bus Driver Applicant Test
Answer Sheet" It is currently not administered The test
was conceived by a Ryder employee Also, one or more
of these drivers had to complete Ryder's previous em-
ployer form, even though they were given the right of
first refusal in the contract between Ryder and the Dis-
trict All of the former Paul's Line drivers that sought
employment with Ryder were hired
Nack considered the Paul's Line drivers qualified and
they completed the hiring regimen prescribed by Ryder
pursuant to Ryder's directives and control These drivers
filled out forms and took tests which were administered
and maintained by Ryder There is no claim Nack or the
Distnct is consulted concerning these or other require-
ments Ryder places or may place on all of its applicants,
including those who will work at Alpine
Nack does not prepare and send offers of employment
to applicants nor does she send out any letters rejecting
applicants She is not responsible for the administration
of the Company's policies and procedures instituted to
comply with the Immigration Reform and Control Act
According to Nack, when she needs a new driver
A We contact Ryder and request a new person
or a fill-in person
Q And then what—what happens next'
A They try to locate someone that usually
would live in the East County area because of the
drive to Alpine, and that person would be sent to
Alpine if at all possible for an interview
Q And, when the person comes up to Alpine,
what happens next in terms of the review process9
A We have a short personal interview between
myself and the driver and, when possible, we like to
let a driver go out on several different runs with
drivers during the day and let them see what Al-
pine's all about
Q Okay, and with respect to your personal inter-
view with these applicants, what is your under-
standing with respect to your authority on whether
you're going to accept the applicant or not9
A I believe that it's my authority that, if, for any
reason, I feel that person is not suited for Alpine,
that we could reject it
Q Okay Have you ever had occasion to reject
someone based on your initial interview9
A No
Nack does have the right to interview new hires and if
she is not satisfied, ask Respondent to replace them
Nack has not exercised this right of refusal to date, but
that does not afford Respondent any greater ability to
bargain with the Union about the matter
In early summer 1988, Nack referred Ken Smiler to
the driver trainer at Ryder, after he sought a job with
Nack at Alpine Nack called the driver trainer and said
she thought Spiller would make an excellent driver The
driver-trainer at Ryder started training Spiller within the
next week, including some behind the wheel training at
San Diego, and then he was assigned by Ryder to
Alpine He completed his training at Alpine with Nack
as the trainer There was no testimony by any Ryder su-
pervisor concerning the decision to hire Spiller, nor did
Spiller testify concerning any interviews or other hiring
380 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
requirements he went through at Ryder s San Diego fa
Way 14
The fact that he was hired after being referred by
Nack, in these circumstances is insufficient to permit a
finding that Nack hired him To the contrary Nack
clearly indicated she could only refer an applicant to
Ryder and put in a good word she understood she could
not hire a driver, it was solely within Ryder s discretion
f Wages
Wages for the employees working at Alpine range be
tween $7 and $8 15 All dnvers newly hired to work at
Alpine have a starting rate of $7 per hour San Diego
drivers start at $5 50 an hour The wages for the San
Diego drivers are based on the contracts the Company
has with the San Diego Unified School District which
detail the rates or charges for the service based on what
is referred to as a live time and miles computation where
Ryder is compensated on the number of hours involved
in providing the service and the miles that students are
on board the buses Nack set the Alpine wage rates after
consulting the drivers According to Turner the Dm
tnct s wage range is negotiable but he would have to
refer any such changes to the School Board Martinson,
the substitute driver who transferred from Paul s Line
with an hourly wage of $775 an hour has his wages
capped at $8 per hour even though he would be earning
more under the contractual formula for yearly wage in
creases
On the Alpine drivers anniversary dates they receive
wage increases One driver, Judy Larocque had her
wages increased to $7 28 per hour on her anniversary
date The Alpine drivers are guaranteed 30 hours a
week On the occasions of field trips, these assignments
are in addition to the guaranteed 30 hours a week Nack
makes the field trip assignments without any consultation
with Ryder
g Discipline
In its contract negotiations with the Union concerning
the San Diego employees Ryder proposed certain disci
plme policies which Helm testified were comparable to
those in effect at Alpine He testified that Ryder main
tamed the right to terminate Alpine drivers for dishones
ty theft or misappropriation of company property
proven immoral or indecent conduct intentional unau
thonzed use of company vehicles, two consecutive unre
ported unexcused absences in a 9 month period failure
to stop at all railroad crossings as required by law, re
porting to work under the influence of an intoxicant nar
" Nack also referred an applicant named Linda Sibley to the same
Ryder dnver trainer and she also became a driver at Alpine but there
was no evidence concerning the hiring processes or who determined to
hire this applicant There is no evidence she was hired because she was
referred by Nack Nack also referred an individual seeking a substitute
drivers job to Ryder This applicant David Ward did not testify and it is
not a matter of record if he was ever hired by Ryder Accordingly I can
not draw any conclusions that Ryder has granted Neck the right to hire
employees or otherwise bypass the standard application process for new
hires
is District drivers were paid about $5 75 per hour when they
were employees of Paul s Line
colic or drug or refusal to take any blood drug or al
cohol test as required by the Company pursuant to the
Ryder Student Transportation Services Operations
Manual intentionally carrying an unauthorized passen
ger knowingly punching another employee s timecard
verbal and physical abuse to students, failure to check in
and around each bus seat after entering the parking lot to
ensure that all passengers have left the bus soliciting
work of a character performed by the Company for any
person persons or organization other than the Compa
ny failure to comply with the Company s stated policies
regarding preventable accidents chargeable accidents,
and motor vehicle standard
The District notifies Ryder if there is an accident in
volvmg one of their buses Nack does not inform Ryder
if the bus is not owned by Ryder Ryder has discussed
with Nack the forms to be used in the event there is an
accident involving one of their buses The Highway
Patrol usually determines if the driver should be disci
plmed Nack did have occasion to discipline a driver
once concerning an accident The driver was Vicki
Goldstein and according to Nack Ryder was not con
sulted before Nack disciplined her The General Counsel
placed in evidence several communications sent by
Ryder supervisors concerning Goldstein s accident
which suggested driver retraining on one missive to
Goldstein a disciplinary notice and a note dated Febru
ary 5 1988 stating Requested Kandi [Nack] remove
Vickie from routes medical problem operation on eyes
Nack admitted that Stimpson, a Ryder supervisor would
make suggestions concerning particular drivers on occa
sion such as his suggestions about Goldstein
Based on these communications I conclude that Gold
stein was disciplined with Ryder s knowledge and acqui
escence at the least Nack admitted Ryder made the ulti
mate decision to permanently suspend Goldstein after
she and Stimpson consulted on two occasions
Ryder also retains the right to discipline Alpine dnv
ers for 16 failure to notify management at least 1 hour
prior to beginning of scheduled work assignment if the
employee is going to be absent from that work assign
ment, failure to observe stated safety, sanitation, or disci
plinary policies laws and regulations of the state and
school district deviation from assigned routes unless ap
proved by management or due to emergency situations,
failure to properly complete all required paperwork
loafing wasting time, loitering excessive visiting sleep
mg on the job fighting disorderly conduct or improper
use of two way radios causing a chargeable accident,
use of tobacco when driving a schoolbus or on school
property eating or drinking while operating a schoolbus,
excessive absences, use of profane or indecent language
fueling a bus while occupied by passengers or while
motor is running soliciting gifts and/or favors from cus
tomers failure to take proper care of buses as previously
instructed failure to clean inside of buses failure to per
form requisite safety inspections and inspections for
damage or equipment failure excessive tardiness etc
"These matters are also contained in the Company s proposals to the
Union for inclusion in the collective bargaining agreement for the San
Diego drivers
RYDER STUDENT TRANSPORTATION 381
Most of these infractions have not occurred at Alpine
Nack does reprimand Alpine drivers for routine infrac-
tions, such as tardiness or failure to properly clean or in-
spect their buses Nack has issued one or more warning
letters to Alpine drivers without consulting Respondent
One such letter was issued to Eileen Ward who had first
been given several verbal warnings concerning her fail-
ures to keep her bus clean Nack requires Alpine drivers
to clean the outside of their assigned buses, unlike San
Diego
According to Helm, Knack has limited authority to
discipline Alpine drivers For example, she may be in-
volved in the investigation of an accident or violation of
company policy, but she alone could not determine
what, if any, disciplinary action would be taken If Nack
is involved in establishing whether disciplinary action
would be taken against an employee, she would make a
recommendation and Ryder would act upon that recom-
mendation She never demanded a driver's termination,
only removal from the District Ryder can retain that
driver's services elsewhere Any actual terminations of
employment are the responsibility of Ryder personnel,
not Nack For example, she would not notify any of the
Ryder departments that an employee had been terminat-
ed, or ensure that all funds are paid prior to termination
Nack would not be involved in any reemployment deci-
sion under Procedure 7 23 of the Company's policy, but
she does have a "say" regarding who works for the Dis-
trict
Nack had occasion to "sternly" request the removal of
a driver named Claire Neighbor Nack observed Neigh-
bor engaging in unacceptable behavior, including han-
dling another drivers' purse, cursing in front of students
resulting in a parental complaint, and other objectional
conduct Nack informed the District's business manager,
Rob Turner, of Neighbor's behavior and Turner tele-
phoned Ryder to request Neighbor's immediate removal
and replacement Turner followed the telephone call
with a written request Ryder acquiesced to these re-
quests and immediately terminated Neighbor Nack in-
formed Neighbor of his discharge
Nack also requested Ryder to remove a driver named
Ken Brown from Alpine, and Ryder complied Nack
wrote Brown a letter informing him of his termination
on November 16, 1987 Nack testified she wrote the
letter without checking with Ryder, however, the record
is not clear if the letter was written before Nack commu-
nicated with Ryder requesting Brown's removal from
Alpine or about writing the letter Nack never disputed
Helm's testimony that the District, including Nack, could
ask Ryder to remove a driver from Alpine but they
could not terminate any Ryder employee, that was solely
Respondent's province
For example, Ryder Manager Virgil Stimpson termi-
nated Alpine driver Mark Palmer for his involvement in
a verbal altercation, even though Nack recommended
that Palmer not be fired 17 The other disputant, Lobbes,
" According to Nack
A He was terminated by Mr Stimpson
Q And prior to that termination, was there any discussion be-
tween you and Mr Stimpson with regard to the termination?
A Yes, there was
was also removed from Alpine, but he was not terminat-
ed He continued to work for Ryder, he was assigned to
work out of San Diego Ken Brown was suspended from
driving at Alpine and Ryder had the nght to use him
elsewhere in the Ryder system during this suspension
Nack admitted it was ultimately Ryder's decision who
will be employed
As noted above, in the event of an accident, Nack
would inform Respondent if a Ryder bus was involved
She would not necessarily inform Respondent if a Dis-
trict owned bus was the vehicle involved in the accident
The Ryder forms are completed when Ryder buses are
involved in an accident All school bus accidents are re-
ferred to the California Highway Patrol, which decides
if the driver should be disciplined Determination of
whether the driver should receive internal discipline
would be based on Nack's recommendation and any in-
vestigation Respondent's supervisors chose to conduct
into the matter
Nack has written directives to employees without con-
sulting Ryder For example, Nack wrote a memo to
Eileen Ward concerning bus maintenance and cleaning
on March 23, 1988 The memorandum did not reference
or threaten any discipline for failure to comply with the
directive 18 A copy of the memorandum was sent to
Ryder Prior to issuing the memorandum, Nack had sev-
eral conversations with Ward concerning her duty to
keep the bus clean inside and out She never consulted
with Ryder before giving these instructions to Ward
Q And what did you tell Mr Stimpson?
A I told him, under the circumstances, that i felt It really wasn't
called for, that neither driver was on the clock at the time, they
were on their own time, they—the problem had not occurred in
front of any students It was on district property but It was in the
parking lot area
Q And what did Mr Sumpson respond to you?
A He felt that more action should be taken
(Pause)
Q And did you make any determination with respect to whether
the district should challenge the retention of Mr Palmer in the dm-
tnct?
A We discussed—I discussed with Mark the possibility of chal-
lenging, and he advised me that he was not planning on coming back
in September anyway
Q And, as a result of that conversation, what, if any, action did
you take with respect to Mr Stimpson s decision to terminate his
services?
A I just voiced my opinion
There is no clear claim or other convincing evidence that Nack could
override Stimpson's decision The contractors good will may always be
called on, but such action does not indicate any lack of power to effec-
tively negotiate terms and conditions of employment regarding basis for
termination
18 The memorandum reads as follows
It is the driver's responsibility to keep the bus clean, exterior as
well as interior I was embarrassed when #5-86 was picked up, and
a comment was made about the filthy exterior
#5-86 has a massive leak in the rear end This is a very obvious
leak that has been going on for some time, yet I don't see a report of
this on the Daily Drivers Vehicle Condition Reports Why ? Oil had
formed a puddle at #5-86's parking site, and the left rear wheels
were also coated with 90-weight oil and dirt Besides being abusive
to the equipment, this is a safety hazard with the rear breaks now
soaked in oil
I expect a closer and more thorough daily inspection done by you
daily? Please remember your responsibility
382 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Ryder never informed her she should not so instruct
Alpine drivers
If an employee is involved in an altercation or is oth-
erwise deemed in need of discipline, Nack might contact
Ryder supervisors Helm or Londa She would also
inform Ryder that she felt a particular employee would
not work out at Alpine The decision of whether the
driver was terminated or transferred to another Ryder
location would be Ryder's The Company would howev-
er, remove the driver from Alpine
Nack is the on-site individual that informs employees
their buses are not cleaned in the requisite manner She
also is the on-site person who insures the drivers proper-
ly maintain their buses, including a daily vehicle inspec-
tion sheet 19 Nack routinely advises the drivers when
they fall to meet her requirements, which could be called
a verbal warning These actions are not investigated or
overseen by Respondent unless Nack requests specific
action such as removal of the driver Nack could remove
the driver from one route and assign them another, less
desireable route, without consulting Ryder The evidence
does not clearly establish that Nack must or does strictly
adhere to Respondent's disciplinary policy
Another driver, Jack Sutton, referred to as the lead
driver, reviews these sheets and performs any mainte-
nance or repairs he can He then gives the sheets to
Nack Sutton is a Ryder employee, Sutton also maintains
the interiors of the Distnct owned buses as well as per-
forming minor routine maintenance on the buses such as
replacing light bulbs Ryder replaces its own light bulbs
and performs the other minor repairs on its own buses,
Sutton, a Ryder employee, performs on the District
owned buses Both District and Ryder buses are kept on
District property
As previously indicated some of the buses are owned
by the District, and others are owned by Ryder Ryder
employees drive the buses owned by the District Ryder
maintains the buses it owns The District owned buses
are maintained by Big H Fleet Service, Inc Ryder main-
tains the buses it owns, including mechanical malfunc-
tions If a Ryder bus breaks down, Ryder is called, and
either sends a mechanic or a replacement bus
Regardless of ownership, the drivers are required to
check the fluid levels and breaks and report any mechan-
ical problems They are required to wash their assigned
buses inside and out The drivers are also responsible
under District policy, for maintaining student discipline
on their assigned buses, and have a bus ticket procedure
19 form used by the drivers for the vehicle inspection is the
Driver Vehicle Inspection Report, which is a daily defect sheet It is
used for both District and Ryder owned vehicles Sutton picks up the
sheets daily to determine if he can effect the repairs He then brings the
sheets to Nack who determines if any major repairs are required If a
major repair of a Ryder vehicle is required she calls Ryder, and if ills an
Alpine bus, she calls Big H Fleet Service
The District also has a maintenance form It has used for the past 2
years, without seeking Ryder s approval The District uses another defect
slip for the Ryder owned buses only, which are given to Ryder
The drivers also maintain a record of mileage and gas and oil consump-
tion These records are kept by the District They have been used since
at least 1974 Nack insures the drivers complete the necessary forms and
. advises the drivers if they are failing to properly complete them She
does not consult with Ryder before she advises a driver they failed to
complete a portion of a form
that is initiated by the driver and involves Nack and the
school principals, and even the school board when neces-
sary
The District's policy concerning the issuance of
schoolbus tickets is distributed to parents The first sec-
tion of the policy reiterates the state laws relating to
pupil transportation, including the authority of the
driver, and guidelines for issuance of a ticket for student
misbehavior Nack reviews the policy with the drivers
prior to the start of each school year This review is
done without first seeking approval from Ryder She has
never shown Ryder the document The drivers usually
issue the tickets for student misconduct without consulta-
tion with Nack or any Ryder official The ticket is pro-
duced by the District without consultation with Ryder
The District also gives students good riding awards
The recipients are selected by the drivers Ryder is not
consulted concerning the issuance of these awards, they
are dispensed according to District policy Similarly, the
District gives students "Awards of Merit," which the
drivers give students they select The award requires
Nack's signature Ryder is not consulted before an award
is made
The drivers are given a school calendar, which is a
document prepared by the district San Diego drivers
also get the appropriate school calendar Nack does not
consult with Ryder before giving the drivers the calen-
dar
The District also is Involved in the transportation of
handicapped students At times, the school nurse will
give special instructions concerning the transportation
needs of a particular student These instructions are not
first given to Ryder
h Other supervisory duties
Robert Londa is one of Respondent's contract manag-
ers20 and he deals with the drivers at Alpine for "crises
intervention" Helm further described the supervisory sit-
uation as follows
The day-to-day—the assignment on the routes
and the day-to-day operations are handled by Kandi
as transportation director at Alpine, but if a prob-
lem arises, if the district has, for instance, a problem
with a driver and wants or needs that driver reas-
2 ° Londa, contract manager for the San Diego area, including San
Diego Unified School District and National City School District and
three private schools, described his duties as follows
A I have to see to It that the buses and drivers are maintained and
run on a daily basis, that the routes are run daily, the drivers are on
time to work and appear, that the contractual agreements are met
and schedules met and that all policies and procedures, as they apply
to the San Diego lot, are maintained
Q And do you perform those same responsibilities with respect to
Ryder s contract with the Alpine district'
A No
Q And who handles those responsibilities with respect to the
Alpine chstnct9
A Kanch Nack
Londa also testified that Nack hires the Alpine drivers This testimony is
not credited based on demeanor Londa patently attempted to tailor his
testimony to present It in a light most favorable to Respondent's case I
also note that his claim was directly refuted by Nack and Helm
RYDER STUDENT TRANSPORTATION 383
signed, they would then call Bob or write Bob, and
he would intervene that time
Q In attempt to work out some sort of resolu-
tion9
A Either that or—yes, reassign another driver,
make another driver available, reassign that individ-
ual to-
Nack would advise Londa there is a problem at Alpine
Ryder and the Distnct transmit information and forms to
each other on a weekly basis Nack stated she communi-
cated verbally with Londa, Stimpson or Stimpson's re-
placement probably less than once a month She commu-
nicates with the San Diego office about twice a week to
request substitute drivers Many of the policies Nack fol-
lows at Alpine are mandated by state laws
Nack serves as dispatcher for the Alpine drivers If an
employee is going to be absent or tardy, they contact
Nack Ryder does not have a supervisor at Alpine to
insure all the forms are completed in a timely manner,
Nack handles that duty She also assigns the Alpine driv-
ers their routes, and work schedules, 2 ' including setting
the bus routes She also can alter routes and schedules as
circumstances warrant Nack performs these functions
without consulting Ryder If an employee at Alpine
failed to call in to inform Nack they would be absent or
tardy, she would notify Bob Londa, Ryder's contract
manager, and progressive discipline could be instituted
Londa has instituted attendance and sign-in policies in
San Diego which were distributed to the San Diego
drivers, not the Alpine drivers Londa did not clearly
disclaim any right to impose such policies at Alpine, or
at least the right to consultation about them Londa has
exercised very little close supervision of the Alpine driv-
ers Alpine has, however, instituted a sign-in and sign-out
procedure similar to that used in San Diego at Respond-
ent's request
Nack does not do all of the dispatching, she drives a
bus in the afternoon, in the morning from 6 to 7 30 a m
she generally is not in the yard, all the drivers report
within this time period Judy LaRocque, a Ryder em-
ployee working at Alpine, gets to the yard at 6 a m and
performs some of the dispatching duties for 10 to 15 min-
utes, which includes monitoring telephone calls in the
event there is a missing student On a regular basis, Jack
Sutton is in charge when Nack is not in the yard
Sutton is generally responsible during this time "to see
the operation runs smoothly" According to Nack
Q And what type of tasks does he perform in
seeing that the operation runs smoothly9
A Referring to the mormng9
Q Yes, ma'am
A In the morning he makes certain that all of the
buses start If they don't start, he tries to decide if
it's something that—if it's the battery, he will
charge the battery If it's something further than
that, he'll contact one of the trucks to come in and
see if we can get the vehicle running
21 Nack performed the same dunes when she was an employee of
Paul s Line
He'll assign a spare bus if a bus isn't able to be
gotten road-ready
Q Okay, and there was some testimony about—if
you're not there, Jack would be responsible for
meeting with the substitute drivers who might be
sent up from San Diego
With respect to the route to which that substitute
driver is assigned, who determines that'
A It depends on which driver is absent for the
day That would determine where a substitute
would be placed
On occasion Sutton would change assignments
According to Nack, Ryder does not have any author-
ity to require the District to use a particular driver on a
particular route Nack makes the assignments based on
the driver's disposition and qualifications She maintains
a seniority list 22 for Alpine drivers only She uses the list
solely for assigning field trips Alpine drivers arrange ab-
sences with Nack including days off and medical ap-
pointments Nack approves and disapproves vacation re-
quests without consulting with Respondent In sum,
Nack performs the day-to-day supervisory duties de-
scribed in Respondent's Operations Manual in many
area's of first line supervision
Nack does maintain the Alpine employees driver train-
ing records, but all other personnel records are kept by
Ryder and Ryder deals with all employee requests to
review these records Nack also posts notices and direc-
tives on two bulletin boards located in the Alpine drivers
room, as she did when Nack was an employee of Paul's
Line One of these bulletin boards was called "Mother's
Board" by the drivers, with mother referring to Nack
Nack named one board "Kandi-Grams" and the other
"Captains Corner", both referring to herself According
to LaRocque, postings related to day-to-day operations,
including job opportunities Also posted were informa-
tional notices such as a driver missing stop times or any
other problems Nack determined to call to the attention
of the drivers Some matters posted related to general
driver interest, such as potluck notices
Nack testified without refutation that she posts notices
relating to medical histories of different students, route
changes, bus changes, and numerous other notices con-
22 Londa maintains seniority lists for San Diego drivers These lists
were prepared shortly before the Instant trial There was a list that appar-
ently named both San Diego and Alpine drivers, but that was supplanted
by these recently prepared lists The recency of their preparation leads
me to find that they are not probative of any issue under consideration in
this proceeding
Judy Thompson testified that during the organizing campaign, a Ryder
official, Milton Hauser, came to Alpine and met with the drivers During
this meeting he mentioned there was a seniority list and seniority would
be used by the Company This testimony was unrefuted Based on de-
meanor, which appeared straightforward, I credit Thompson s testimony
Further, Helm admitted Ryder maintained a semonty list for route bid-
ding and assignment of charters, he did not know if the list included
Alpine drivers
However, there is no evidence concerning when such a list was pre-
pared It could have been compiled at a time when Respondent believed
the Alpine drivers were properly included in the unit and did not ques-
tion whether the Board should assert jurisdiction I conclude maintenance
of a seniority list including both Alpine and San Diego drivers is not pro-
bative of any issue
384 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cermng the operation This includes notices to all drivers
concerning cleaning the buses In general, Nack testified
that her managerial duties have not changed since the
Ryder contract with the District
On occasion, Ryder has posted items on one or both
bulletin boards Most of these postings, according to
LaRocque, dealt with "union stuff I don't pay that
much attention to the bulletin board" At one time
Ryder posted a notice relating to life insurance
i Training
Nack provides all of the in-service training for Alpine
drivers She is a state certified instructor The state laws
require a specified amount and type of training for all
schoolbus drivers 23 Also, the drivers must complete cer-
tain training routines to upgrade their licenses in order to
drive larger buses which carry more children Nack does
this training for all Alpine drivers
Nack schedules and performs all training of the Alpine
drivers without consulting Ryder She also schedules up-
grade training without consulting Ryder, including se-
lecting those employees who will receive upgrade train-
ing When Nack schedules training sessions, attendance
by the Alpine drivers is mandatory per her instructions
Nack sends Ryder proof of training, about once a month
She maintains those records of training required by the
State
Nack also requires the drivers to attend some of the
four yearly "school improvement days" (SIP) depending
on the subject matter of the seminars, without consulting
Ryder She requires, without consultation with Ryder,
the Alpine drivers to attend CASTRO (California Asso-
ciation of School Transportation Officials) workshops 24
To her knowledge, the Alpine drivers do not attend
training sessions at Ryder's San Diego facility In deter-
mining training, she considers the suggestions made by
drivers and attempts to schedule training around the
drivers' schedules
Nack would have no objection if Ryder wanted to ini-
tiate a training program which exceeded that she has
adopted She would have to refer the issue to the Dis-
tnct if such additional training also engendered addition-
al costs Turner testified that if such additional training is
deemed a change in the contract necessitating school
board approval it could be negotiated, subject to such
approval However, he was not certain it was a change
needing school board approval In that event, he could
approve the change
23 To be certified as a schoolbus driver in California, the driver must
participate in a minimum of 20 hours of classroom training including first
aid, vehicle code provisions, and safety procedures and 20 hours of
behind-the-wheel training Then the drivers must pass a written test con-
ducted by the California Highway Patrol The dnver must also have a
current first aid card or take a first aid test The driver must also partici-
pate in 10 hours annually of in-service training to keep their certificates
current Nock has been qualified since 1982 to tram drivers both in the
classroom and behind the wheel
24 Londa also requires the San Diego drivers to attend SIP and
CASTRO meetings This was not shown to be an unusual requirement
IV ANALYSIS AND CONCLUSIONS
As previously noted, the issue is whether Ryder re-
tained sufficient control over the employment conditions
of its employees to enable it to engage in "effective" or
"meaningful" bargaining with a labor organization Na-
tional Transportation Service, supra, 240 NLRB 565 Res-
Care, Inc , supra, 280 NLRB 670 (1986) The scope and
degree of control exercised by the entity exempted by
Section 2(2) of the Act must be examined in making this
determination, including primary economic terms and
conditions of employment In Res-Care, id at 674, the
Board agreed with those circuit court decisions finding a
core group of "basic bargaining subjects" If an employ-
er retains control over these subjects, meaningful bar-
gaining is possible Citing Jefferson County Community
Center v NLRB, 732 F 2d 122, 127 (10th Cir 1984),
R W Harmon qi Sons, Inc v NLRB, 664 F 2d 248, 251
(10th Cir 1981)
Conversely, therefore, if the employer does not
have ultimate authority over these subjects, we
would find that meaningful bargaining is precluded
Without denigrating the importance of other per-
sonnel-related issues, we hold that if an employer
does not have the final say on the entire package of
employee compensation, i e, wages and fringe bene-
fits, meaningful bargaining is not possible In
our view the ability of an employer to have the
final, practical say regarding wages and benefits,
and the union's practical ability to affect the em-
ployer's decision by resort to economic action is
fundamental
The Board further defined "effective" and "meaning-
ful" bargaining in Community Transit Services, 290
NLRB 1167, 1169 fns 4, 5 (1988), as follows
Although Res-Care held that wages and benefits
are the primary elements which must be examined
in the employer-exempt entity relationship, Res-
Care recognized the importance of evaluating the
controls exercised by the exempt entity and the em-
ployer in other personnel related areas, i e disci-
pline, hiring, and grievances, in order to determine
whether meaningful bargaining is possible [Citation
omitted ]
In Res-Care, supra, the Board at one point stated
that if an employer does not have the final say on
the entire package of employee compensation, i e
wages and benefits, meaningful bargaining is not
possible [Citation omitted ] Viewed in isolation, this
statement could arguably stand for the proposition
that the employer must retain control over each of
the economic aspects of its labor relations if mean-
ingful bargaining is to be possible However, this
statement, read in the context of the decision,
merely stresses the Board's position that in order to
ensure meaningful bargaining the employer must ex-
ercise control over economic terms and conditions
of employment, rather than control over solely non-
economic terms
RYDER STUDENT TRANSPORTATION 385
Respondent contends that the agreement between the
District and Ryder so limits its control over terms and
conditions of employment that it is prevented from exer-
cising the requisite ability to bargain effectively with the
Union 25 Conversely, counsel for the General Counsel
argues Ryder retains sufficient control over essential
terms and conditions of employment of its Alpine em-
ployees to enable it to engage in meaningful bargaining
with the Union
I find that the facts present a close case The District
set some limits and controls upon Ryder in the contract,
even though one term of the agreement provides that
Ryder is an independent contractor The issue is whether
Respondent has sufficient control over economic and
other terms and conditions to engage in meaningful bar-
gaining To make this determination the scope and
degree of control exercised by both Respondent and the
District over labor relations must be examined Trailways
Commuter Transit, 284 NLRB 935 (1987), Dynaelectron
Corp, 286 NLRB 302 (1987)
In negotiating the contract with the District, Ryder
agreed to a wage range for minimum and maximum
rates Respondent retains the right to set initial wages
within that range The contract also limits the annual in-
creases the drivers receive to "the same rate of the CPI
for All Urban Consumers or a maximum of five (5) per-
cent over the existing rate of pay" The District also
agreed to reimburse the Employer for up to eight substi-
tute drivers for actual wages, not to exceed $8 per hour
The District agreed to reimburse Ryder for the actual
costs of workers' compensation insurance, unemployment
insurance, and FICA for the substitute drivers, but
Ryder must pay for this insurance for the regular driv-
ers I therefore conclude that Ryder is specifically limit-
ed by the contract in its employee compensation expend-
itures See Res-Care, supra
Benefit levels are also somewhat restricted by the con-
tract While Ryder has unrestrained authority to grant
benefits that do not increase the exempt entities expendi-
tures, Ryder specifically recognized the need to acquire
District authorization to add or increase those benefits
which result in increased expenditures by the District as
was the case with the employee bonus plan Compare
Long Stretch Youth Home, 280 NLRB 678, 681 In 12
(1986) While the District did approve one increase in
benefits without school board approval, consent from the
District was a recognized prerequisite to implementation
of the bonus plan Like the situation in Res-Care, Re-
spondent is subjected to specific controls by the exempt
entity over wage and benefit levels
Respondent is also limited in granting such benefits as
vacations, funeral and sick leave, and other fringe bene-
fits, without first acquiring approval from the exempt
25 As was the case in Res-Care, supra at 673 fns 12, 14, Respondent
argues that the Board should not assert jurisdiction because the exempt
entity was a joint employer The Board rejected that analysis, referring
to ARA Services, 221 NLRB 64 fn 7, 65 fn 11 (1975), stating
Although the Board concluded that the employer shared the
statutory exemption of the county because the county was a joint
employer of the employer s employees, we do not rely on the
Board s joint employer analysis We do not require a finding that the
exempt entity is a joint employer in order to withhold the assertion
of jurisdiction
entity Respondent's negotiations with the Union are
therefore limited concerning wages and other core issues
within the meaning of Res-Care Respondent arguably
could increase wages and benefits without approval of
the District, but would not be able to pass on the costs,
the contract does not permit Respondent to recover such
costs However, such action would not be economically
sound and it is unlikely Ryder would assume the position
in negotiations that it would bargain about matters it is
not assured of being recompensed for after committing
to such increases Thus, any ability to bargain about
these matters is more hypothetical than real
Accordingly, it does not appear that Respondent could
implement any wages or benefits that increase the costs
of the exempt entity without the approval of the District
The ability of Respondent to implement any wage or
benefit proposals agreed upon during negotiations is not
solely within its discretion The District set the wage
range and limited the benefit level There was no mecha-
nism in the contract that protected Respondent from ex-
ceeding the levels set in the contract by providing for re-
imbursement by the District if collective bargaining re-
sulted in Ryder exceeding the contract's limits This lack
of unlimited discretion or ability to shift some if not all
of the cost for wages and benefits, lead me to conclude
that Respondent does not have sufficient authority over
compensation and benefits to engage in meaningful bar-
gaining about them with the Union Res-Care, Inc ,
supra Compare Firefighters, 292 NLRB 1025 (1989)
Respondent agreed to accept the full responsibility of
assuring the quality of its personnel and insuring they
meet stated criteria Ryder contracted to bear the unfet-
tered authority, responsibility, and liability for hiring and
discharging all drivers Unquestionably, the District
could and would request particular drivers be disciplined
from suspension to discharge However the contract
does not give the exempt entity the right to impose disci-
pline upon a driver, and it's requests are limited to ex-
cluding a driver from providing service under the con-
tract, not termination from Respondent's employ I find
the record fails to establish the exempt entity can hire
and/or fire employees In fact, Respondent chose to fire
Palmer, an employee Nack recommended be retained
Further, Respondent imposed requirements for appli-
cants, such as passing a drug test and written examina-
tion, which exceeded those previously prescribed by the
District Rustman Bus Go, 282 NLRB 152 (1986), Dynae-
lectron Corp, supra, Trailways Commuter Transit, supra
I conclude control over discipline is vested in Re-
spondent This control is somewhat dissipated by the
granting to Nack the day-to-day supervisory duties over
the drivers Nack gives what amounts to verbal warnings
to drivers and Respondent does not get involved in disci-
plinary matters until advised by Nack of the need for
action Once advised by Nack of the need for discipline,
there was no clearly established routine whereby Re-
spondent engaged in an independent investigation before
taking action There was no directive or other evidence
establishing that Nack was required to follow Respond-
ent's disciplinary policy, on the contrary, Nack was not
386 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
even given a copy of the manual so she did not know
some if not most of these policies
Respondent has conferred upon the District, through
Nack, the authority for the day-to-day supervision of the
Alpine drivers The contract gives the District complete
control over routing and dispatching, including the hours
of operation which incorporates a minimum guaranteed
6-hour workday As noted above, Nack informs the driv-
ers of their schedules and routes, as provided in the
agreement, as well as informing them of their routine
duties, such as cleaning obligations, standards of dress
and conduct, special student needs, training require-
ments, both state required as well as additional training
Nack deems necessary or desired such as upgrading driv-
ers certifications to larger buses, which SIP days the
drivers will attend, which forms to use for maintenance
and safety checks, what, if any, information the drivers
receive concerning operations, which drivers are as-
signed particular routes, driver assignments for field
trips, establishment of absenteeism and tardiness rules,
granting time off for vacations or illnesses, and, most if
not all other day to-day supervisory duties, excluding
hiring and discipline, as discussed above
I find these duties exceed those normally required by
the nature of schoolbus transportation and meeting the
time and route requirements of a client The provisions
in the Drivers Handbook, which are generally applied
nationwide, and which have not been furnished to Nack,
are insufficient in these circumstances to permit a finding
that Respondent engages in the daily on-site supervision
of the Alpine drivers There is no evidence that any
Ryder supervisors regularly visit Alpine or closely super-
vise these drivers On the contrary, the record establishes
that Respondent only gets involved in the Alpine oper-
ation when informed of an emergency or is requested by
Nack I conclude that Nack's operational control exceeds
mere monitoring of contract compliance Nack is the
person who monitors the drivers' performance at Alpine
Respondent's supervision is only distant and generally
exercised only upon request, impairing its ability to
engage in meaningful bargaining on this subject Com-
pare Robinson Bus Service, 292 NLRB 70 (1988), and
Dynaelectron Corp, supra
In this case, I find that the above-described facts estab-
lish that the exempt entity has sufficient control over the
Alpine drivers on a day-to-day basis that the Employer,
Ryder, does not possess sufficient control over employ-
ment conditions to enable it to engage in meaningful col-
lective bargaining with a labor organization I conclude
that it would not effectuate the purposes and policies of
the Act to assert jurisdiction
On the above findings and conclusions, and on the
entire record in the case, I make the following
CONCLUSIONS OF LAW
1 Ryder Student Transportation, Inc , is an employer
engaged in commerce and activities affecting commerce
within the meaning of Section 2(2), (6), and (7) of the
Act
2 The facts in this case warrant the Board to decline
to assert jurisdiction over Respondent as Employer of
drivers for the Alpine Union School District 26
[Recommended Order omitted from publication ]
26 If the Board adopts this conclusion of law or if no exceptions are
filed, I find It appropriate to remand the case to the Regional Director
for withdrawal of the complaint