Transportation Enterprises, Inc.

National Labor Relations Board - Board Decisions

Jun 6, 1977

229 N.L.R.B. 1248 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Transportation Enterprises, Inc. and Amalgamated
Transit Union Local 1549, Petitioner. Case 23-
RC-4446
June 6, 1977
DECISION AND DIRECTION OF
ELECTION
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a
hearing was held before Hearing Officer Frank
Carrabba of the National Labor Relations Board on
October 29, 1976. Following the hearing, the case
was transferred to the Board. Thereafter, the Em-
ployer and Petitioner filed briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby affirmed.
Upon the entire record in this proceeding the
Board finds:
1. The Employer is engaged in providing bus
transportation in and about the State of Texas,
maintaining terminals at Dallas, College Station,
Austin, San Marcos, San Antonio, and Corpus
Christi. The Petitioner seeks a unit consisting of all
drivers and maintenance personnel employed at the
Austin, Texas, terminal. The bulk of the Employer's
business at its Austin terminal is generated pursuant
to its contract with the University of Texas for
operation of a shuttle bus service for transportation
of university students, faculty, and staff. The Em-
ployer contends that the drivers who are engaged in
the University of Texas shuttle bus operation should
not be included in the unit because the Employer in
this respect shares the University's exemption from
the Board's jurisdiction.' During the fiscal year
ending July 31, 1976, the Employer's gross revenue
for all of its operations in the State of Texas exceeded
$2,600,000, which included revenue derived from the
provision of shuttle bus services valued at $1,400,000,
schedule bus services at $590,000, and charter bus
I Sec. 2(2) of the Act excludes from the definition of "employer" any
"wholly owned Government corporation ... or any State or political
subdivision thereof . . "
2 The Employer's gross revenue satisfies the $250,000 gross volume
jurisdictional standard for the transit industry set forth in Charleston Transit
Company, 123 NLRB 12% (1959).
3 The Employer in its brief relies on Roesch Lines, Inc., 224 NLRB 203
(1976), and Campton Bus Lines, Inc., 226 NLRB 4 (1976). In these cases the
Board held that the provision of transportation services for public school
districts was so intimately connected to the school distnct's function as to
229 NLRB No. 174
services at $450,000.2 With respect to the Austin
operation during this same time, the Employer
grossed $824,000 from the University of Texas
shuttle system, and $232,000 from charter, schedule,
rental, and lease operations.
The University of Texas shuttle bus system is
operated pursuant to a written contract with the
board of regents of the University, and is for the
exclusive use of the faculty, students, and staff of the
University. The contract specifies the type of buses
to be used, gives the University the exclusive right to
determine all routes, and requires the maintenance of
records reflecting the number of buses operated and
routes served. The Employer contends that the
foregoing facts demonstrate that the provision of this
shuttle service is so intimately connected to the
proper functioning of the University that the Em-
ployer should be exempt from the Act's coverage. 3
We disagree.
Here, no state statute requires that the University
of Texas provide a shuttle bus service for its students,
faculty, and staff,4 and the service provided is in no
way regulated by state statute. 5 The board of regents
is empowered by the Texas Education Code to
collect fees "to cover the cost of student services
which the board deems necessary or desirable in
carrying out the educational functions of the institu-
tion." 6 However, there is no indication that the
board of regents viewed this service as necessary;
thus the service, which was not established until
1968, was clearly viewed only as a desirable aid to
the functioning of the University. The Employer is
paid from a fund known as the "shuttle bus
committee account," whose sources of revenue are
the student services fee and the proceeds from the
sale of faculty and staff shuttle passes, rather than
from state funds. The University exercises no control
over the labor relations of the Employer and does not
require any special training for the drivers,7 who are
only required to hold a valid chauffeur's license.
On the basis of the foregoing, it is clear that the
operation of this shuttle bus system is not intimately
connected to the functioning of the University. It is
also clear that the University exercises no control
over the Employer's labor relations. For these
reasons we shall assert jurisdiction over the Employ-
er's University of Texas shuttle system. The remain-
der of the Employer's services provided from the
warrant the conclusion that these services are, in effect, a municipal function
and, as such, that the Employer performing them is exempt from the Act's
coverage.
See Columbia Transit Corp., 226 NLRB 812 (1976).
5 See Roesch Lines, Inc., supra.
o Tex. Educ. Code, art. 54.503.
7 Compare Columbia Transit Corp., supra, where the schoolbus drivers
were required to attend a state-conducted schoolbus driver education
program, the school districts issued guidelines to the drivers, and the
districts had the right to strike names from the list of eligible drivers.
1248
TRANSPORTATION ENTERPRISES, INC.
Austin terminal involve commuter, charter, and
transportation of private school students, 8 none of
which is related to a municipal or governmental
function. Accordingly, we shall assert jurisdiction
over the Employer's entire Austin, Texas, terminal
operation.
2. The labor organization involved claims to
represent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of employees of the Employer
within the meaning of Sections 9(c)(1) and 2(6) and
(7) of the Act.
4. Petitioner seeks to represent a unit of all
drivers and maintenance personnel, excluding all
office employees and supervisors as provided under
the Act. At the hearing, the Employer asserted that it
took no position regarding the maintenance person-
nel. At the time of the hearing the Employer
employed approximately Ii maintenance employees.
The record reflects that the maintenance employees
receive the same benefits as the drivers, and may
occasionally share supervision. Based on the forego-
ing and absent any indication that the maintenance
employees do not share a community of interest with
the drivers, we shall include the maintenance
employees in the unit found appropriate.
, The Employer operates a commuter service from Austin to Southwest
Texas State University which is not pursuant to a contract with the
University. The Employer also operates a bus service from Austin Airport to
Fort Hood, Texas, not pursuant to contract, transports students for St.
Stephens Episcopal School, a private shcool, and has a contract with
Bergstrom Air Force Base for the transportation of school children from the
base to various parochial schools in Austin.
Upon the foregoing and the entire record, we find
that the following unit is appropriate for the purposes
of collective bargaining within the meaning of
Section 9(c) of the Act:
All drivers and maintenance personnel at the
Employer's facility in Austin, Texas, excluding
office clerical employees and supervisors as
defined in the Act.
[Direction of Election omitted from publication.] 9
CHAIRMAN FANNNG, concurring:
I agree that the Board should assert jurisdiction
over the Employer's entire operation, but not for the
reasons given by the majority. In cases where a
governmental entity contracts with a private employ-
er for the performance of services, I believe that the
only issue which need be decided is whether the
private employer controls the labor relations of its
employees and is capable of bargaining effectively
over their conditions of employment.' 0 Here, the
record reveals that the University of Texas exercises
no control over the Employer's labor relations, and
the Employer is clearly capable of bargaining
effectively with its employees; as such, the assertion
ofjurisdiction is warranted.
9 [Excelsior footnote omitted from publication.]
i' See Rural Fire Protection Company, 216 NLRB 584, 587 (1975), Acting
Chairman Fanning's dissenting opinion; Current Construction Corp. and
Samuel M. Wagner, 209 NLRB 718, 719 (1974), Member Fanning's
dissenting opinion.
1249