Baker Bus Service v. MLRB and Teamsters Local 48, No. CV-78-702, affirming Board Case No. 78-A-05; Affirmed 416 A.2d 727 (Me. 1980). STATE OF MAINE SUPERIOR COURT KENNEBEC,SS CIVIL ACTION Docket No. CV78-702 BAKER BUS SERVICE, INC., ) ) Plaintiff-Appellant ) ) v. ) ) EDWARD W. KEITH, ) MICHAEL SCHOONJANS and ) KENNETH T. WINTERS, in ) their capacity as the Maine ) DECISION Labor Relations Board, ) ) Defendants-Respondents ) ) and ) ) TEAMSTERS LOCAL UNION NO. 48, ) ) Intervenor ) This case is before the Court on an appeal, pursuant to 80B M.R.Civ.P. and 26 M.R.S.A. 968(4), by Baker Bus Service from a representation decision of the Maine Labor Relations Board. By an agreement, dated August 19, 1977, the Augusta Board of Education subcontracted its school bus operation to the Baker Bus Service. Baker Bus is a private corporation organized under the Laws of Maine. On December 28, 1977 Teamsters Local Union No. 48 filed a petition with the Maine Labor Relations Board (M.L.R.B.) seeking the formation of a proposed bargaining unit composed of all bus drivers and bus driver aids employed by Baker Bus in its "Augusta District" 26 M.R.S.A. 966. At the hearing held on the union's petition, Baker Bus moved to dismiss on grounds that the M.L.R.B. lacked jurisdiction because Baker Bus was not a public employer as defined in 26 M.R.S.A. 962(7). The hearing examiner denied the motion. [-1-] ____________________________________________________________________________ Baker Bus appealed the denial of its motion to the full M.L.R.B. on May 12, 1978. On July 11, 1978 the M.L.R.B. held a hearing on the matter. Based on the testimony and evidence adduced at the hearing the M.L.R.B. affirmed the decision of the hearing examiner. The decision of the M.L.R.B. involves an interpretation of the statutory definition of a public employer. Under the terms of the Municipal Public Employees Labor Relations Act, 26 M.R.S.A. 961 et seq., the jurisdiction of the M.L.R.B. in unit determination questions is limited to disputes between public employers and public employees: "Public employer" means any officer, board, commission, council, committee or other persons or body acting on behalf of any municipality or town or any subdivision thereof, or of any school. water, sewer, or other district. 26 M.R.S.A. 962(7). The hearing examiner and the M.L.R.B. held that the phrase "acting on behalf of" must be interpreted to mean that any entity acting as an agent of a school district is subject to the jurisdiction of the M.L.R.B. The M.L.R.B. concluded that the Board of Education retained enough control over the day to day operation of the bus system to make Baker Bus an agent of the School District. The M.L.R.B. based its finding of an agency relationship between the Augusta Board of Education and Baker Bus Service on the following finding of facts.[fn]1 ____________________ 1 The M.L.R.B. concluded that a School Board which decides to subcontract its school bus operation should be able to do so and yet continue such function as the setting of bus routes, disciplining students, and communicating with drivers about road conditions, accidents etc. without these facts being considered indicia of control for purposes of establishing an agency relationship The M.L.R.B. also did not consider the fact that a majority of the drivers hired by Baker Bus were formerly employed by the Augusta Board of Education to be significant since there was no evidence that the Board of Education required Baker Bus to hire its former employees. -2- ____________________________________________________________________________ 1. By agreement dated August 19, 1977, the term of which is to run to August 31, 1982, the Augusta, Maine Board of Education ("Board of Education") subcontracted its school bus operation to Baker Bus Service, a privately owned business corporation organized under the laws of the State of Maine. Besides operating the school bus transportation system for the Board of Education, Baker Bus Service provides school bus transportation services for the Town of Winthrop, Maine and also operates a bus charter business. 2. Under the terms of the August 19, 1977 agreement, Baker Bus Service leased 24 school buses for the term of the agreement from the Board of Education for a total of $1.00. The Board of Education is required to provide all other buses needed to perform the transportation services required by the agreement, with a minimum of two new buses to be provided each school year except for the 1977-78 school year. Printed on the sides of the buses provided by the Board of Education are the words "City of Augusta School Department," while the words "Baker Bus Service, East Winthrop, Maine" appear on the sides of Baker Bus Service's own buses. 3. As provided in the agreement, Baker Bus Service submits to the Board of Education on the first and fifteenth days of each month a statement detailing the number of miles traveled in performance of the agreement and, in regard to co-curricular and field trips, the number of hours of driver "wait-time." The Board of Education then pays Baker Bus Service a flat rate per mile and per hour of driver "wait-time," as specified in Exhibit A of the agreement. 4. Paragraph (4) of the August 19, 1977 agreement provides that "[t]he Board shall have the right to modify bus routes, to eliminate a bus route, or to combine bus routes, with appropriate notice to the Contractor. The Board shall also have the right to change any school time schedule." 5. Paragraph (6) of the agreement states that all buses provided by the Board of Education "shall be used only for services to the Board unless otherwise indicated by the Board. . . In no event shall these buses be used for anyone other than the Board or the City of Augusta." 6. Paragraph (7) of the agreement provides that the Board of Education is responsible for complying with any Federal or State regulations requiring that additional equipment for the buses be provided or that modifications be made in existing equipment. -3- ____________________________________________________________________________ 7. Paragraph (8) of the agreement provides that Baker Bus Service is responsible for the costs of providing the transportation services required by the agreement, with the exception of furnishing the buses, installing radios in the buses, and providing insurance coverage. Such responsibility includes providing the bus drivers, operating and maintaining the buses, maintaining the bus radios, and parking the buses. 8. Paragraph (11) of the agreement states that Baker Bus Service will supply the Board of Education with copies of the school bus drivers' licenses and copies of the drivers' annual physical reports. Paragraph (12) of the agreement provides that Baker Bus Service will make character references for the school bus drivers available to the Board of Education at the Board's request, while paragraph (14) of the agreement requires that Baker Bus Service notify the Board of Education of the names of new drivers and the date of birth of the drivers for insurance purposes. 9. Paragraph (15) of the agreement provides that Baker Bus Service is responsible for the hiring and firing of school bus personnel. According to the testimony of the President of Baker Bus Service at the July 11, 1978 hearing, the Board of Education has veto power over the hiring of any school bus driver. 10. Baker Bus Service sets the salaries of the school bus personnel, and is responsible for preparing the payroll, which is drawn upon Baker Bus Service's checking account. Baker Bus Service pays workmen's compensation insurance and group insurance for the school bus personnel. 11. Paragraph (19) and (20) of the agreement provide, respectively, that the Board of Education has the right to audit the mileage records of Baker Bus Service at any reasonable time and to inspect any bus at any reasonable time. 12. Paragraph (24) of the agreement provides that the Board of Education will supply all gasoline required to carry out the provisions of the agreement. The gasoline is supplied to Baker Bus Service at the pumps of the City of Augusta's City Garage. 13. Paragraph (27) of the agreement provides that the Board of Education will reimburse Baker Bus Service for any registration and excise taxes which Baker Bus Service pays for any of the leased buses. The buses are registered in the name of "City of Augusta, Lessor" and "Baker Bus Service, Lessee." -4- ____________________________________________________________________________ 14. Paragraph (29) of the agreement provides that the Board of Education will supply a parking lot for storage of the buses, and that Baker Bus Service may move a small building on the lot. The buses are stored in a City of Augusta parking lot above the City Garage. Baker Bus Service's office on the parking lot was constructed free-of-charge by vocational students. The expenses for maintaining the lot and the office are borne by Baker Bus Service. 15. Paragraph (33) of the agreement states that the Board of Education shall assume the costs of installing radios in the buses and of purchasing and maintaining appropriate comprehensive and collision insurance coverage on each bus. The stations on the radios installed in the buses are located in the City Garage, in the Superintendent of School's office and automobile, in Baker Bus Service's office at the parking lot, in the Baker Bus Service transportation foreman's automobile, and in a police vehicle. 16. Paragraph (34) of the agreement states that the Board of Education will add Baker Bus Service to the Board of Education's liability insurance policy covering the buses. The addition of Baker Bus Service as an insured under the insurance policy has not caused the premiums for the liability insurance to increase. 17. Upon being awarded the subcontract to operate the school bus system, Baker Bus Service hired approximately 21 school bus drivers. Approximately 18 of these drivers were former school bus drivers for the Board of Education. The supervisor which Baker Bus Service hired for the school bus operation was formerly the Board of Education's transportation foreman for its school bus system. 18. School bus drivers are involved in the disciplining of students who misbehave on the buses. The drivers issue such students misconduct forms, which must be returned to the driver with a parent's signature. If the student persists in his or her misbehavior, the driver may, depending upon the seriousness of the misbehavior, suspend the student's bus privileges for several days, or, after consultation with the principle of the student's school, suspend the student's bus privileges for an extended period of time. The issues raised by the appeal of the Baker Bus Service to this Court are (1) Did the M.L.R.B. erroneously interpret the statutory definition -5- ____________________________________________________________________________ of public employer?; (2) What is the standard of review of findings of fact made by the M.L.R.B?; (3) Did the M.L.R.B. err as a matter of fact and law in holding Baker Bus to be an agent to the Board of Education?; (4) What is the effect on this case of the decision of the M.L.R.B. in a related prohibited practices case? DISCUSSION OF LAW The Court, and the parties are in complete agreement with the conclusion of the M.L.R.B. that the phrase "acting on behalf of" in the definition of public employer should be interpreted to mean that "any officer, board, commission, council, committee or other person or body" acting as an agent of a school district is a public employer. cf. N.L.R.B. v. United Insurance Company, 390 U.S. 254, 88 S.Ct. 988, 19 L.Ed.2d 1083 (1968). However, Baker Bus contends that the M.L.R.B. erred in interpreting the statute to include private corporations which may be acting on behalf of a school district in the definition. Baker Bus argues that the statutory definition of public employer provides that only agents of a school district can be public employers, and school districts can only act through clearly defined public entities such as the Board of Education. Baker Bus concludes that since it is not a public entity it cannot be a public employer even if it is acting on behalf of a school district. The Court finds this interpretation of the statutory definition of public employer to be incorrect. School districts are expressly authorized to make contracts for the transportation of school children with private companies. 20 M.R.S.A. 220. The statutory definition of public employer -6- ____________________________________________________________________________ begins with a seemingly complete generic list of public entities which might act on behalf of a school district or municipality. This list is followed by the phrase "or other person or body." This wording, combined with the fact subcontracts such as the one involved in this case are expressly authorized, indicates the legislature intended to include private entities such as Baker Bus Service within the definition of public employer. This intent is consistent with the express policy of the Municipal Public Employ- ees Labor Relation Act itself. 26 M.R.S.A. 961 states that the public policy of the State and the purposes behind the Act is to promote a better relationship between municipalities and their employees by providing a uniform basis for recognizing the right of employees to join labor organizations, and to be represented by such organizations in collective bargaining on the terms and conditions of employment. Therefore, if a private corporation is found to be an agent of a municipality, that corporation will be a public employer subject to the provisions of the Municipal Public Employees Relations Act. 26 M.R.S.A. 961 et seq. Baker Bus Service next contends that the M.L.R.B. made errors of fact and law in concluding that Baker Bus was an agent of the Augusta School District. The first issue raised by this contention is the standard of review to be employed by this Court in reviewing the findings of fact made by the M.L.R.B. 26 M.R.S.A. 968(4) indicates that review of a unit determination decision of the M.L.R.B. shall be done in the manner specified in 26 M.R.S.A. 972. Section 972, which on its face relates to review of arbitration decisions states: Either party may seek review by the Superior Court of a binding arbitration panel. Such review shall be sought in accordance with the Rules of Civil Procedure Rule 8OB. -7- ____________________________________________________________________________________________________________________________________________________ The binding determination of an arbitration panel, or an arbitrator, in the absense of fraud upon all questions of fact shall be final. The Court may, after consideration, affirm, reverse, or modify such binding determination or decision based upon an erroneous ruling or finding of law... One commentator has noted that this section, as it relates to review of representation proceedings causes problems of interpretation with regard to the standard of review to be applied to findings of fact made by the M.L.R.B. McGuire and Dench, "Public Employee Bargaining Under the Maine Municipal Public Employees Labor Relations Law: The First Five Years" 27 Me.L.R. 25, 76-8 (1975). The statute on its face applies to review of arbitration proceedings. Since different considerations are involved when the Court is reviewing a decision of the M.L.R.B. than when review is being made of an arbitration decision, the intent of the legislature is somewhat obscured. The language of the statute seems to indicate that findings of fact made by the M.L.R.B. are binding on the court even if they are not supported by any evidence. Clearly such a result could not have been intended. The statute also provides that representation decisions are to be appealed under Rule 80B M.R.Civ.P. The usual standard of review under Rule SOB is that findings of fact will not be disturbed if they are supported by substantial evidence. McGuire and Dench, supra at 77. The suggestion has been made that the Court simply ignore all of 26 M.R.S.A. 972 except insofar as it makes Rule 80B applicable. McGuire and Dench supra at 78. This Court declines to accept that suggestion. Words in a statute should not be ignored if there is a reasonable interpretation which gives -8- ____________________________________________________________________________ meaning to all the words in the statute. Fink v. Maine State Highway Commission 328 A.2d 791, 799 (Me. 1974). Under 26 M.R.S.A. 972 findings of fact made by the M.L.R.B. are to be final only if they are supported by any credible evidence. Findings of fact not so supported become errors of law, and are thus reviewable under the terms of the statute. See: Dubois v. M.E.S.C. 150 Me. 494, 114 A.2d 359 (Me. 1955), compare 26 M.R.S.A. 1194(9). In the instant case, the Court finds all of the finding of fact made by the M.L.R.B. to be supported by credible evidence. Therefore, these findings are final and binding on this Court. The next issue is whether or not the M.L.R.B. erred in concluding that Baker Bus was an agent of the Board of Education. This question is clearly reviewable as the decision of the M.L.R.B. is a conclusion of law. cf. N.L.R.B. v. United Insurance Company, supra. The critical factor distinguishing an agent from an independent contractor is the right to control the details of the work to be performed. N.L.R.B. v. United Insurance Company, supra; Pheonix Mutual Life Insurance Company, 167 F.2d 983 (7th Cir. 1948); Desfosses v. Notis 333 A.2d 83 (Me. 1975); Murray's Case, 130 Me. 181 154 A. 352 (1931). There is no acid test for determining whether sufficient right to control exists in any given situation. However a number of factors are generally considered including: (1) The existence of a contract for the performance by a person of a certain piece or kind of work at a fixed price; (2) The independent nature of his distinct calling (3) his employment of assistants with the right to supervise their activities; (4) his obligation to furnish necessary tools, supplies and materials; (5) his right to control the progress of the work except or to final results; (6) the time for which the workman is employed; (7) the method of payment, whether by time or by the job; -9- ____________________________________________________________________________ (8) whether the work is part of the regular business of the employer. Murray's Case, supra at 186. The M.L.R.B. clearly considered these factors in deciding that Baker Bus is an agent of the Board of Education. In making its finding of agency, the M.L.R.B. held that the required control was shown by the following facts: 1) the Board of Education supplied, and was under obligation to continue to supply all the buses required to perform the transportation services; 2) the buses supplied by the Board of Education are to be used only for the transportation of Augusta school children; 3) the Board of Education is responsible for compliance with all State and Federal regulations requiring additional or modified equipment on the buses; 4) the Board of Education retains veto power over the hiring of any school bus driver; 5) the Board of Education supplies all gasoline required to operate the bus system; 6) the Board of Education pays all registration fees and excise taxes on all the buses; 7) the Board of Education provides a parking lot for storage of the buses; 8) the Board of Education is responsible for supplying liability insurance coverage for the bus system. The decision the M.L.R.B. was required to make in this case was not an easy one. There are no clear cut lines between agent and independent contractors in this case. The M.L.R.B. made a decision between two conflicting views of the facts. In such a case the Court should not overturn the decision of the M.L.R.B. cf. N.L.R.B. v. United Insurance Company, supa; Joint Council of Teamsters v. N.L.R.B. 450 F.2d 1322 (D.C. Cir. 1971). Baker Bus claims that the M.L.R.B. resolved the agency issue in this case in a related prohibited practice dispute between Teamster Local Union -10- ____________________________________________________________________________ No. 48 and the Board of Education. Teamster Local Union No. 48 v. City of Augusta Board of Education. M.L.R.B. case no. 78-04. The Court finds this argument to be completely without merit. The prohibited practice case involved claimed unfair labor practices arising from the decision of the Board of Education to subcontract its school bus operation to Baker Bus. The issue of the relationship between Baker Bus and the Board of Education was in no way considered by the M.L.R.B. in that case. Baker Bus is a public employer as defined in 26 M.R.S.A. 962(7), and the M.L.R.B. has jurisdiction. The entry will be: Appeal DENIED. The decision of the Maine Labor Relations Board is AFFIRMED. Dated: November 19, 1979 /s/________________________________ LEWIS I. NAIMAN JUSTICE, SUPERIOR COURT -11- ____________________________________________________________________________