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

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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

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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

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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
          

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