MTL, Inc., 1071 (1976)

MTL, INC. 1071

MTL, Inc. and Hawaii Teamsters & Allied Workers,

Local 996,' Petitioner. Case 37-RC-2114

April 26, 1976 DECISION AND ORDER

BY MEMBERS FANNING, PENELLO, AND WALTHER Upon a petition filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Dennis R. MacCarthy of the National Labor Relations Board on August 20, 22, and 23 and September 1, 2, and 3, 1975.

Following the hearing and pursuant to Section 102.67 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, and by direction of the Acting Regional Director for Region 37, this proceeding was transferred to the Board for decision. Thereafter, briefs were filed by the Employer, hereinafter also referred to as MTL; Petitioner, hereinafter also referred to as Local 996; and the following Intervenors: City and County of Honolulu, hereinafter also referred to as the City; Hawaii Government Employees Association, Local 152,

ACSC&E, hereinafter referred to as HGEA; and United Public Workers, Local 646, ACSC&E, hereinafter referred to as UPW.

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:

Petitioner seeks certification as the exclusive collective-bargaining representative of all employees of the Employer employed on the Island of Oahu, excluding confidential and professional employees, guards and supervisors as defined in the Act. The question presented concerns the MTL-City relationship and whether such relationship places the Employer within the exclusionary provisions of Section 2(2) of the Act as a political subdivision of a State.

The Employer operates and manages the bus system for Honolulu, Hawaii. On February 25, 1971, the Employer and the City signed an interim agreement 1 Hawaii Government Employees Association, Local 152, ACSC&E and United Public Workers, Local 646, ACSC&E were permitted to intervene at the hearing on the basis that they represented Government employees and, accordingly, have a potential interest in representing the employees herein in the event that the Board finds they are public employees. The City and County of Honolulu was also permitted to intervene.

which provided that MTL would operate and manage the public transportation system for the City since the current strike by Local 996 against the Honolulu Rapid Transit Company, or HRT, had created 'an immediate need for transportation on an interim basis.' The interim agreement was to remain in effect until the resolution of the strike against HRT, the acquisition of the HRT facilities by the City, or until the expiration of 1 year from the effective date of the contract. Subsequently, the interim agreement has been extended.

Local 996 or its predecessor (the Transit Workers Union) had been certified as the collective-bargaining representative for all operating and maintenance employees of HRT since 1949 and had been certified as the representative for the office clerical employees since 1963. Pursuant to the interim agreement, the Employer is required to enter into a labor agreement with Petitioner.

As a result, MTL entered into an interim labor agreement with Petitioner and has continued to recognize Petitioner as the representative of its employees since that time.

The Employer, Petitioner, and City all contend that the Employer is a private corporation, the City does not possess or exercise substantial control over the labor relations of the Employer, there is no jointemployer relationship existing between the City and the Employer, and, accordingly, ask that the Board direct an election in the unit sought.

Intervenors HGEA and UPW contend that close control over the Employer's operations exercised by the City is so substantial that the City is the real Employer and that under State of Hawaii law they have the collective-bargaining right for the 'public' employees of the Employer? The Employer was incorporated on September 4, 1970, pursuant to the laws of the State of Hawaii.

Pursuant to its bylaws, the Employer holds stockholders' meetings and board of directors' meetings on a regular basis. There are two stockholders who elect the directors who, in turn, appoint the officers of the Employer. An annual operating and financial report and monthly financial reports are submitted by the Employer to the City. Supplies or equipment are requisitioned from the City subject to approval of the bus division and finance department. On approval, a purchase order is made out in the name of the City which pays the bill after receiving a voucher that the...