Teamsters Local 48 and Baker Bus Service, No. 78-UD-17, affirmed in Case No. 78-A-05. Affirmed CV-78-702, affirmed 416 A.2d 727 (Me. 1980) STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 78-UD-17 [Issued: April 28, 1978] ____________________________ ) TEAMSTERS LOCAL UNION NO. 48) ) and ) UNIT DETERMINATION REPORT ) BAKER BUS SERVICE ) ____________________________) As the result of the filing of a Petition for Appropriate Unit Determination by Richard R. Peluso, International Trustee, Teamsters Local Union No. 48, a Unit Determination hearing was held on Wednesday, February 22, 1978, at 10:00 a.m. in the Bureau of Labor Conference Room, Augusta, Maine. Present thereat for the Petitioner was: Jonathan Axelrod, Esquire Attorney for Teamsters Local Union No. 48 Present thereat for the Respondent were: William F. Hufnagel, Esquire Attorney for Baker Bus Service Ernest P. Hewett, Jr. President, Baker Bus Service Also present thereat was the undersigned Attorney/Examiner for the Maine Labor Relations Board in his capacity as hearing examiner. At the commencement of the hearing, Mr. Hufnagel on behalf of the Baker Bus Service made a Motion to Dismiss the Petition for Appropriate Unit Determination based on lack of jurisdiction. Mr. Hufnagel alleged that the Baker Bus Service was an independent contractor and provided a service to the Augusta School Depart- ment and was not acting "on behalf of" the school department as provided in 26 M.R.S.A. Section 962(7). The parties admitted that the issue of jurisdiction was a threshold issue and should be addressed prior to a hearing on the merits of the petition and the hearing examiner then proceeded to take evidence on the issue of jurisdiction of the Maine Labor Relations Board in this matter. The testimony indicated that Baker Bus Service is a Maine corporation with Ernest P. Hewett, Jr. as the President and sole stockholder. Mr. Hewett received a request for public bids from the Augusta School Department for bus service and he submitted a bid on behalf of Baker Bus Service in August, 1977. The bid from Baker Bus Service was accepted by the Augusta School Department and a contract was entered into. Both parties were represented by counsel during the preparation of the contract. To hire prospective bus drivers, Baker Bus Service rented a room at the Civic Center, contacted the unemployment office, interviewed applicants for the positions, and accepted application forms completed by the applicants. Inter- views were conducted at various locations and employees were hired by Baker Bus Service pursuant to the contract between Baker Bus Service and the Augusta School Department. Baker Bus Service has a Public Utilities Commission license and carries passengers throughout the State of Maine as a charter carrier. Baker Bus Service has a contract with the Winthrop School system as well as the Augusta School system [-1-] ____________________________________________________________________________________ to bus students. Approximately 85% to 90% of the busing done by Baker Bus Service is school transportation. The contract between the Baker Bus Service and the Augusta School Department does not specify the benefits paid to employees and employee benefits are determined by and provided by the Baker Bus Service. Pursuant to the contract for service, Baker Bus Service has the right to hire and fire em- ployees, and there is no requirement for Baker Bus Service to hire employees previously, employed by the Augusta School Department. Baker Bus Service also has complete con- trol in the discipline of its bus drivers. The service contract provides that the City of Augusta buses will be used only for school purposes, and the school buses have State of Maine licenses and not municipal licenses. Baker Bus Service performs full maintenance on the buses and radio equipment and provides parts and pays full taxes on all parts. The City of Augusta maintains insurance on the vehicles. The Augusta School Board can ask for character references for the bus drivers employed by Baker Bus Service driving City of Augusta buses but, to date, Baker Bus Service has not informed the Augusta School Board of the names of the bus drivers. Pursuant to the service contract, Baker Bus Service submits a bill after the 15th and 30th of each month, and a bill is prepared based on the mileage and waiting time performed during that time period. Baker Bus Service determines which driver is assigned to a particular bus route and bus routes can be added or discontinued by the Augusta School Department. Baker Bus Service made a security deposit of $10,000 to insure the performance of the contract. An additional 5 cents per mile is held in escrow by the School Department for the school year. The Augusta School Board provides the buses, insurance and gasoline, and if additional buses are needed due to maintenance, then Baker Bus Service provides its own buses. Baker Bus Service leases buses from the City of Augusta for $1 and the leased buses say City of Augusta School Department on the side. The buses owned by Baker Bus Service say Baker Bus Service on the side. The use of the leased buses is limited to transpor- tation for Augusta school children. Bob Dutil, a supervisor for the Baker Bus Service, sets the bus routes in the City of Augusta. Before his employment with Baker Bus Service, Bob Dutil was employed by the City of Augusta doing substantially the same job. Cooperation between the Baker Bus Service and the City of Augusta is necessary to coordinate changes in bus routes, resolve discipline problems on the buses and exchange information on the condition of roads in adverse weather. Mr. Hewett, at the initial hiring for drivers for the Augusta buses, hired all of the former City of Augusta bus drivers with the exception of three. A safety workshop was conducted for the Baker Bus drivers by the school just prior to the start of school, similar to the practice of holding safety workshops when the bus drivers were employed by the Augusta School Department. All of the buses have two-way radios and two-way radio communication is maintained with the garage, Bob Dutil, and the Superintendent of Schools' office. A parking area for the buses and a bus shack for the bus drivers is provided in the Augusta Public Works parking lot. Mr. Dutil, the supervisor for Baker Bus Service, speaks with or has contact with the Superintendent of Schools about every day. Many of the forms used by Baker Bus Service are identical to or -2- ____________________________________________________________________________________ similar to the forms previously used by the Augusta School Department for pre-trip information, student discipline information and other information supplied on a regular basis to the Baker Bus Service. The handbook of policies for the Baker Bus Service distributed by Mr. Dutil to the bus drivers driving for Baker Bus Service in the City of Augusta is substantially similar to the handbook of policies previously used by the Augusta School Department. In comparing the four bus drivers of the Augusta School Department now employed by the Baker Bus Service, one driver categor- ized them as "the same boss (supervisor), the same route, the same bus, and the same day-to-day procedures." The Municipal Public Employees Labor Relations Act defines a public employer in Section 962(7) as: "Any officer, board, commission, counsel, committee, or other persons or body acting on behalf of any municipality or town or any subdivision thereof, or any school, water, sewer, or other district, or the Maine Turnpike Authority." There is no legislative history concerning 26 M.R.S.A. Section 962(7) to aid in an interpretation of the legislative intent of the definition in question. If a narrow interpretation were given to the definition, it would be necessary for the petitioner in this case to demonstrate an agency relationship between the Augusta School Depart- ment and the Baker Bus Service to subject the Baker Bus Service to the requirements of the Municipal Public Employees Labor Relations Act. If a broad interpretation were given to the definition, then even an independent contractor could be a "public employee" as defined by the Municipal Public Employees Labor Relations Act if he acted "on behalf of" any of the divisions or districts enumerated in Section 962(7). The effect of this decision will be to extend or deny rights under the Municipal Public Employees Labor Relations Act to employees formerly organized under the Municipal Public Employees Labor Relations Act. An extension of the Act because of a contractural arrangement would mean that a private corporation could become a pub- lic employer by contracting with a public employer for a public service. A denial of the rights under the Act to these employees would mean that public employees could lose rights under the Municipal Public Employees Labor Relations Act because the employer contracted out a service. The petitioner in this case has argued that either an agency relationship exists between the Augusta School Department and Baker Bus Service or a relationship exists that is more than just "a providing of a service" by Baker Bus Service to the Augusta School Department. The respondent has argued that Baker Bus Service merely "provides a service" the same as someone who provides "paper clips" or contracts for the build- ing of a school building. The hearing examiner believes that the busing of school children in the Augusta School Department is an integral part of the day-to-day operations of the Augusta School system. It is the opinion of the hearing examiner that the definition of public employer in Section 962(7) of the Municipal Public Employees Labor Relations Act is sufficiently -3- ____________________________________________________________________________________ broad to include. a company such as Baker Bus Service that provides busing for school department, since the alternative would be to deprive employees of rights previously held under the Municipal Public Employees Labor Relations Act after the contracting out of the services. It is therefore the opinion of the hearing ex- aminer that Baker Bus Service is a public employer within the meaning of 26 M.R.S.A. Section 962 and that the Maine Labor Relations Board and its Executive Director and hearing examiners have jurisdiction to hear and render a decision on the unit determination petition submitted by Richard R. Peluso on December 28, 1977, and that a hearing be held as soon as practicable by a hearing examiner of the Maine Labor Relations Board for a determination on the appropriateness of the unit contained in the petition. Dated at Augusta, Maine, this 28th day of April, 1978. MAINE LABOR RELATIONS BOARD /s/___________________________________ Richard L. Hornbeck, Attorney/Examiner -4-