We Transport, Inc.

National Labor Relations Board - Board Decisions

Dec 12, 1974

215 N.L.R.B. 497 (N.L.R.B. 1974)

WE TRANSPORT, INC.
We Transport, Inc. and Town Bus Corp. and Local
1181- 1061 , Amalgamated Transit Union, AFL-
CIO. Case 29-RM-403
December 12, 1974
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a hearing
was held before Hearing Officer Richard Epifianio.
Following the hearing and pursuant to Section 102.67
of the National Labor Relations Board Rules and
Regulations and Statements of Procedure, Series 8, as
amended, and by direction of the Regional Director for
Region 29, this case was transferred to the National
Labor Relations Board for decision. Thereafter, the
Employer filed a brief.
The Board has reviewed the Hearing Officer's rul-
ings made at the hearing and finds that they are free
from prejudicial error. They are hereby affirmed.
Upon the entire record in this case, including the
brief filed herein, the Board finds:
1. We Transport, Inc. and Town Bus Corp. are New
York corporations with their principal place of busi-
ness at 130 Birchwood Park Drive, Jericho, New York,
and branches located at 42 Karl Street, Hicksville, New
York, and 1969 Jericho Turnpike, Elwood, New York,
and as a single integrated enterprise are engaged in the
transportation of school children for public and paro-
chial schools and private contract work, including the
transportation of factory employees, summer camp,
and school charter work. During the past year they had
gross revenues of approximately $2 million of which
$250,000 was derived from sources other than the
school bus operations of this amount, $100,000 was
derived from interstate school charter work, and $75,-
000 to $100,000 was derived from private corporations
engaged in commerce within the meaning of the Act.
During that same period, the Employer purchased sup-
plies valued in excess of $50,000 directly from firms
located outside the State of New York, including $300,-
000 for new buses, $160,000 for gasoline, $50,000 for
tires, and $50,000 for replacement of parts and equip-
ment.
The parties agree, and we find, that We and Town
together constitute a single employer within the mean-
ing of Section 2(2) of the Act. The parties further agree,
and we find, that the Employer is engaged in commerce
within the meaning of the Act, and that it will further
the purposes of the Act to assert jurisdiction herein.
Member Jenkins and Member Fanning would assert
jurisdiction on the ground that, as the Employer is
engaged in transit operations other than school bus
operations which directly and indirectly affect, com-
merce and produce annual revenues of $250,000, it is
497
not an essentially local enterprise but, on the contrary,
qualifies, for jurisdictional purposes, under the Board's
standard governing transit systems. Charleston Transit
Company, 123 NLRB 1296 (1959). Compare Camp
Baumann Buses, Inc. and V. S. Buses, Inc., 142 NLRB
648 (1963), and Raybern Bus Service, Inc., 128 NLRB
430 (1960).
Chairman Miller finds it unnecessary to determine
what portion of the Employer's revenues are derived
from school bus operations vis-a-vis other types of
transit operations. In his view, the Board has never
made such a distinction, and has consistently counted
revenues from public sources as part of the total reve-
nues of any employer for jurisdictional yardstick ap-
plication. The only issue, in the Chairman's view, is
whether a governmental entity (over which the Board
is not authorized to assert jurisdiction) has sufficient
control over the private employer's labor relations poli-
cies that either (a) the true employer is a governmental
authority, so that we are precluded for asserting juris-
diction, or (b) the unit is not one "appropriate for
collective bargaining" because no meaningful bargain-
ing could take place without the approval or participa-
tion of a governmental authority which is beyond the
jurisdictional reach of this Board. No such control by
any governmental agency, such as a public school
board, having been evidenced by this record, the Chair-
man would apply our applicable jurisdictional stand-
ards. Whether this bus service be regarded as a "transit
system" or a nonretail service enterprise, it is plain that
the Board's jurisdictional standards have been met, and
thus the Chairman joins in asserting jurisdiction. Mem-
ber Fanning concurs in Chairman Miller's "control of
labor relations" analysis as set forth above. See Ja-Ce
Company, Inc., 205 NLRB 578; Current Construction
Corp. and Samuel M. Wagner, 209 NLRB 718 (1974),
Member Fanning's dissenting opinion. He therefore
sees no reasonable bar to the Board's assertion of juris-
diction over these operations which satisfy standards
set forth in Siemons Mailing Service, 122 NLRB 81, for
nonretail service enterprises, and the standard set forth
in Charleston Transit Company, supra, for "transit sys-
tems."
We disagree with the contention of our dissenting
colleague, Member Kennedy, asserted as a ground for
declining jurisdiction herein, that because the instant
labor dispute is, in his opinion, but a continuation of an
earlier dispute before the New York State Labor Board,
that board is alone entitled to assert jurisdiction in the
instant case. In the earlier proceeding in 1971, the Em-
ployer petitioned the NYSLB for an election in the unit
hereinafter found appropriate, and thereafter the Em-
ployer also petitioned the Board for an election in the
same unit, in Case 29-RM-320. The Board, responding
to the Union's objection that the Employer was thereby
215 NLRB No. 91
498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
improperly engaged in forum shopping, dismissed the
petition on the ground that by going to a NYSLB elec-
tion, the employees thereby had an opportunity to ex-
press their desires as to a bargaining representative
with the previous 12-month period, as prescribed in the
Act.' In this proceeding, the 12-month statutory
period has of course elapsed; the petition on file is a new
one. Although the events have not been completely
spelled out in the instant record, it does appear that the
Union filed a representation petition with the NYSLB
prior to the instant petition filed by the Employer, but
there has been no ensuing hearing or election. Further-
more, the Union currently joins with the Employer in
seeking a resolution of the issues in the instant proceed-
ing, and now urges the Board to assert jurisdiction. In
these circumstances, we disagree with our colleague
that the instant proceeding is but a continuation of the
earlier proceeding before the NYSLB, and we therefore
find that the earlier proceeding constitutes no jurisdic-
tional bar.
2. The labor organization involved claims to repre-
sent certain employees of the Employer.
3. A question affecting commerce exists concerning
the representation of employees of the Employer within
the meaning of Section 9(c)(1) and Section 2(6) and (7)
of the Act.
4. The parties agree, and we find, that the following
unit is appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act:
All regular full-time and regular part-time bus
drivers and mechanics employed by the Employer
at its Jericho, Long Island, New York, establish-
ment, excluding clerical employees, guards, all
other employees, and supervisors as defined in the
Act.
[Direction of Election and Excelsior footnote omit-
ted from publication.]
MEMBER KENNEDY, dissenting:
Considerations of precedent, comity, and discour-
agement of forum shopping dictate that this Board
decline to assert jurisdiction over this Employer and I
therefore dissent.
We Transport, Inc., and Town Bus Corp. are New
York corporations which are a single integrated enter-
prise and constitute a joint employer. Their principal
place of business is located at Jericho, New York, and
branches are located at Hicksville and Elwood, New
York. They are engaged primarily in the transportation
of schoolchildren for public schools.'
During the past year, the Employer had gross reve-
nues of approximately $2 million. Of this figure, only
$250,000 was derived from sources other than school-
bus work. One hundred thousand dollars of the $250,-
000, was derived from interstate school charter work.
Public schools are exempt from coverage of this Act
by virtue of Section 2(2). This Board has repeatedly
declined to assert jurisdiction over bus transportation
companies which are essentially local in character and
which operate primarily in aid of local communities
and of the State in the field of education. S. L. Lines,
Inc., d/b/a Pacifrc-Scenic-Lines, 164 NLRB 1178
(1967); CommunityInterprises, Inc., d/b/a Community
Charter Bus System, 164 NLRB 1186 (1967); Brothers
Coach Corp., 158 NLRB 931 (1966); Camp Baumann
Buses, Inc. and V S. Buses, Inc., 142 NLRB 648
(1963); Raybern Bus Service, Inc., 128 NLRB 430
(1960).
We Transport, Inc., and Town Bus Corp. primarily
bus schoolchildren for public schools and therefore op-
erate fundamentally in aid of local communities and
the State in the field of education. Precedent requires
that this Board decline to take jurisdiction over this
Employer.
Moreover, this labor dispute is simply a continuation
of an earlier dispute which this Board declined to take
jurisdiction over in favor of the New York State Labor
Relations Board, and therefore jurisdiction should con-
tinue to be with that board. The Employer petitioned
this Board in 1971 to direct an election to determine
whether its employees desired to be represented for
collective-bargaining purposes by Local 1181, Amal-
gamated Transit Union, AFL-CIO. This Board de-
clined to take jurisdiction over the matter since the
New York State Labor Relations Board had already
done so. We Transport, Inc., 198 NLRB 949 (1972).
The instant labor dispute is a continuation of this ear-
lier matter. Policy considerations of comity and dis-
couraging forum shopping still apply, and I would de-
cline to assert jurisdiction over the instant dispute for
these reasons.
Once again this Board expands its jurisdiction not-
withstanding the ever increasing caseload we experi-
ence under our present jurisdictional standards. I take
this opportunity to reiterate my position that it is un-
wise to broaden the jurisdictional scope of this Board
in light of our caseload problems.'
i We Transport, Inc, 198 NLRB 949 (1972) Sec 9(c)(3) of the Act
provides in part as follows "No election shall be directed in any bargaining
unit or any subdivision within which, in the preceding twelve-month period,
a valid election shall have been held " See Bluefield Produce & Provision
Company, 117 NLRB 1660 (1957), The West Indian Co, Ltd, 129 NLRB
1203 (1961), Olin Mathieson Chemical Corporation, Calabama Plant, 115
NLRB 1501 (1956), T-H Products Company, 113 NLRB 1246 (1955).
2 The majority opinion correctly states they also transport children to
parochial schools and to summer camp They also transport children under
school charter agreements Finally, they enter into contracts for the trans-
portation of factory employees to work
3 See my dissents in Van Camp Sea Food Company, 212 NLRB 537
(1974), and Allen & OHara Developments, Incorporated d/b/a Illim Tower,
210 NLRB 169 (1974)
WE TRANSPORT , INC. 499
Since I would not assert jurisdiction over, this Em-
ployer, it follows that, contrary to the majority deci-
sion, I would not direct an election.
MEMBER PENELLO, dissenting:
Although I agree with my colleagues on the majority
that the Charleston Transit standard is applicable
herein, conirary to them I find that the Employer does
not meet that standard. For in my view the Employer's
income from school charter work must properly be
considered as income from schoolbus operations, and
the remaining income from sources other than school-
bus operations is, therefore , insufficient to satisfy the
$250,000 Charleston Transit standard . Accordingly, I
would dismiss the petition.