Fresno Unified School District (PERB 0082E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
SERVICE EMPLOYEES 	INTERNATIONAL 	UNION,
LOCAL 110, 	AFL-CIO
Charging 	Party,
v.
FRESNO 	UNIFIED 	SCHOOL 	DISTRICT
AND
ABBEY TRANSPORTATION SYSTEM, 	INC.,
Respondent.
Case No. 	S-CE-23
PERB Decision No. 82
January 4, 	1979
Appearances; 	Robert J. 	Bezemek, 	Attorney 	(Van Bourg, 	Allen,
Weinberg 	& 	Roger) 	for 	Service Employees 	International Union,
Local 110, 	AFL-CIO; 	Lee T. 	Paterson, 	Attorney 	(Paterson &
Taggart) 	for 	Fresno Unified School District;
Jack M. 	Tipton, Attorney 	(Wild, Carter, 	Hamlin, 	Tipton &
Quaschnick) 	for Abbey Transportation System, 	Inc.
Before Gluck, 	Chairperson; 	Gonzales and Cossack Twohey, 	Members,
DISCUSSION
Local 110, 	Service Employees 	International Union, 	AFL-CIO,
(hereafter 	SEIU) 	appeals 	the 	hearing officer's 	dismissal of 	an
unfair 	practice 	charge 	filed 	against 	the 	Fresno Unified 	School
District 	(hereafter 	District) 	and 	Abbey Transportation 	System,
Inc., 	(hereafter 	Abbey) 	alleging 	that 	employees 	of Abbey were
terminated 	because 	of 	union 	activity. 	The 	charge 	asserts 	that
Abbey 	is 	"an 	agent, 	instrumentality and/or 	closely related
operation 	of 	the District...." 	The 	hearing officer's 	proposed
dismissal 	is 	based 	on 	his 	reasoning 	that Abbey 	is 	not 	a public
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school 	employer 	under 	the Educational Employment Relations
Act1 (hereafter 	EERA) 	and 	that 	the 	Public Employment
Relations Board 	(hereafter 	PERB) 	lacks 	jurisdiction over 	the
matter.
Abbey 	is 	a 	privately 	held 	stock 	corporation 	located 	in
Fresno, California. 	Abbey's 	business consists primarily of
providing 	transportation 	to 	physically 	handicapped,
educationally 	handicapped 	and mentally 	retarded 	pupils 	to 	and
from 	school. 	Approximately 	40 	to 50 	percent 	of Abbey's
business 	is 	with the District. 	(Another 	40 	to 50 percent 	of
Abbey's 	business 	is 	with 	the Fresno County Superintendent 	of
Schools.)
There 	is 	a 	current 	contract 	between 	the District 	and Abbey
covering 	the 	period 	from September 	4, 	1975 	through
June 30, 	1980. 	The contract provides 	for payment by the
District 	to Abbey according 	to 	a formula based on 	a 	dollar
amount 	per 	pupil. 	An annual 	adjustment 	in the 	initial 	payment
rate, 	which was 	established by the contract, 	is 	to be based on
change 	in 	the Consumer Price 	Index 	(CPI). 	This 	adjustment 	is
self-executing. 	In addition, 	under 	the contract, 	Abbey may
attempt 	to terminate 	the 	agreement 	if 	its 	increased costs
substantially exceed 	the 	additional 	amount 	provided 	by 	the 	CPI
change. 	No other 	relief 	from 	such 	an 	eventuality 	is 	provided.
1The 	Educational 	Employment 	Relations 	Act 	is 	codified 	at
Government Code 	section 	3540 	et 	seq. 	All 	section 	references
are 	to 	the Government Code 	unless 	otherwise 	indicated.
N	2

The District 	has 	final 	approval 	of 	routes 	and 	reserves 	the
right 	to 	adjust 	the 	hours 	of 	pick 	up 	and 	delivery of 	pupils 	"if
it 	becomes 	educationally desireable." 	The 	contract 	also
provides 	that 	all 	vehicles 	operated 	by Abbey must 	comply with
applicable State laws 	and 	regulations, 	and 	that 	buses must be
designed 	to 	transport 	handicapped 	students.2
Abbey 	interviews 	and 	hires 	its 	own 	employees 	without
District 	participation. 	Abbey personnel 	also train 	new
employees 	who must 	obtain 	special 	licenses 	to 	drive 	school
buses. 	Employees' 	wages 	and 	fringe 	benefits 	are 	determined 	and
paid 	by Abbey. 	Abbey's 	employees 	have 	no 	employment 	rights
with 	the 	District, 	and are 	evaluated solely by Abbey.
Discipline 	aboard 	the 	buses 	is 	under 	Abbey's 	direction 	and
control.
Section 3540.1 (k) 	defines public school 	employer 	as 	follows:
"Public school 	employer" 	or 	"employer" means
the governing board of 	a school 	district, 	a
school 	district, 	a 	county board of
education, 	or 	a county superintendent of
schools.
On 	its 	face, 	Abbey does 	not 	fall within 	the 	specifically
enumerated 	categories 	of 	public school 	employer. 	SEIU's 	appeal
is 	based on 	alternative 	theories. 	SEIU contends 	that 	the
2Education 	Code 	section 	1850 	requires 	that 	school
districts 	provide 	bus 	transportation 	for 	physically 	handicapped
students; 	the District would have 	to provide the bus 	service 	if
it 	did 	not 	contract 	for Abbey 	to perform 	the 	service.
Education Code 	section 	39831 	provides 	that 	the 	Board of
Education may 	adopt 	regulations 	regarding 	school 	bus
equipment. 	These may be 	enforced by 	the California Highway
Patrol. 	Vehicle Code sections 	2808 	and 12522 provide
additional 	regulations 	on 	this 	subject.
W	3

interrelationships 	between 	Abbey 	and 	the 	District 	constitute
Abbey as 	an "agent, 	instrumentality, 	or 	representative" 	of the
District 	and 	therefore makes 	the District 	the 	employer 	of 	the
bus 	drivers. 	Alternatively, 	SEIU further 	contends 	that Abbey
"stands 	in the 	shoes 	of" 	the District because 	the
transportation 	services 	Abbey 	provides 	are 	'intimately 	related 1
to 	the 	school 	district's 	function 	and 	it performs 	a public
function 	related 	to the 	educational 	system 	of 	a 	public school
employer. 	It 	is 	found 	that 	in 	neither 	case can Abbey be
considered 	a 	public 	school 	employer 	within 	the meaning 	of 	the
EERA, 	nor 	can 	the District 	be 	considered 	the 	employer 	of
Abbey's 	drivers.3
The National 	Labor Relations Board 	(hereafter 	NLRB) 	has
dealt 	with 	similar 	arguments. 	In Radio and TV, 	Local 	1264 	v.
Broadcast Service 	(1965) 	380 U.S. 	255, 	[58 LRRM 2545], 	the NLRB
developed 	a 	jurisdictional 	standard 	for 	determining whether
separate 	concerns 	should 	be 	treated as 	a single 	employer. 	The
factors 	taken 	into 	account 	included:
3The 	instant 	case 	is 	distinguished 	from 	the 	Board's
decision 	in Joint Powers Board of Directors, 	Tulare County
Organization 	for Vocational 	Education, 	Regional 	Occupational
Center 	and Program 	(TCOVE) 	(6/26/78) 	PERB Decision No. 	57. 	In
that 	case, 	the Board considered 	the 	question of 	whether 	two or
more 	entities 	constituted 	a 	single school 	employer. 	There,
nine school 	districts, 	through a joint powers 	agreement, 	formed
a 	regional 	occupational 	center 	and 	a 	regional 	occupational
program. 	The 	basis 	of 	the 	Board's 	finding was 	that TCOVE was 	a
public 	entity 	engaged 	exclusively 	in 	an 	educational mission,
employed 	certificated 	and 	classified 	employees, 	and 	that 	the
nine 	districts 	together 	with 	the 	governing 	body of 	TCOVE
exercised 	a 	single, 	cohesive managerial 	control 	over
educational 	policy 	as 	well 	as personnel 	policy.
A	4

1. 	Interrelation of operations.
2. 	Centralized control 	of 	labor 	relations.
3. 	Common management.
4. 	Common ownership or 	financial 	control.
It would 	appear 	that 	none of 	the four 	criteria 	are
satisfied by 	the 	facts 	in this 	case before 	us.
While 	the 	contract 	between Abbey 	and 	the 	District 	provides
that 	"the 	Board of 	Education 	reserves 	the 	right 	to adjust 	the
hours 	of 	pick-up and 	delivery of 	pupils 	if 	it 	becomes
educationally desirable," 	and 	the District 	also has 	the 	right
of 	approving routes 	established 	by Abbey, 	the 	hearing officer
found 	that 	in 	practice 	these 	routes 	were 	entirely 	determined 	by
Abbey. 	In 	any event, 	such a provision is 	not 	the 	kind which 	by
itself 	would 	alter 	the 	independent 	nature of 	the 	bus 	company.
The District's 	ability to 	specify routes 	and pickup 	times 	is 	a
function of 	the 	need 	to provide 	adequate 	and 	timely 	bus 	service
for District pupils. 	Thus, 	the District's instructions 	to
Abbey on 	these matters 	would 	be 	analogous 	to 	the 	specifications
attached 	to 	an order 	for 	a product.
It 	is 	particularly 	significant 	that 	the 	contract 	does 	not
provide for, 	nor 	does 	there otherwise appear 	to be, 	any control
by the District 	over Abbey's 	labor 	relations. 	Furthermore, 	in
practice 	the District 	exercises 	no supervisory 	authority over
Abbey's employees. 	Abbey interviews, hires, evaluates, and
trains 	all 	of 	its 	employees 	and 	also determines 	and pays 	its
employees 	their 	wages 	and 	fringe 	benefits. 	The 	testimony of
the 	two of 	the 	fourteen 	employees 	on whose 	behalf 	the 	unfair
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practice 	charge 	was 	filed 	indicates 	that 	their 	dismissals 	were
entirely 	carried 	out 	by Abbey's 	supervisory 	personnel 	and 	that
District 	personnel were 	not 	involved.
SEIU 	argues 	that Abbey 	is 	properly 	under 	PERB 	jurisdiction
because 	the 	school 	bus operation 	is 	"intimately 	related" 	to a
function of 	the 	District. 	This 	"public 	function" 	theory 	takes
into 	account 	that 	many of 	the 	procedures 	to which 	Abbey must
adhere 	in provision of 	the 	services, 	and which 	are 	included 	in
the 	contract with 	the 	District, 	are 	required 	by 	statute. 	In
support of 	its position, 	SEIU cites Roesch Lines, 	Inc. 	(1976)
92 	LRRM 1313, 	in which 	the 	NLRB declined 	jurisdiction over 	the
school 	bus 	operations 	of 	a private 	bus 	transportation 	company
which 	provided 	school 	bus 	service, 	similar 	to 	that 	which 	Abbey
provides 	for 	the Fresno District, 	on a contractual basis.4
It was 	reasoned 	that, 	under 	the circumstances 	and 	the 	nature 	of
the 	contract 	which 	obtained, 	that 	"the 	provision 	of
transportation 	services 	for 	school districts 	is 	so 	intimately
related 	to 	the 	school 	districts 	functions 	that 	such 	services
are, 	in effect, 	a municipal 	function." 	Because governmental
entities 	are 	exempted 	from 	the 	NLRA's 	coverage, 	the 	school 	bus
4 In 	contrast 	to the case before us, 	however, 	in the
Roesch 	case, 	the 	classroom portion of 	the 	transportation
company's 	driver 	training 	program was 	conducted 	by 	an 	employee
of 	the 	school district. 	That 	same employee, 	the director 	of
transportation, also was 	the 	school 	district 	representative 	who
oversees 	the 	contract 	with 	respect 	to 	routes 	and 	scheduling.
Additionally, 	he occasionally held drivers' 	meetings.
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4rn
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operations 	of 	Roesch Lines 	apparently were 	found 	to share 	the
exemption 	of 	the 	governmental 	entity.5
We 	decline 	to accept 	this 	theory. 	The 	fact 	that 	the NLRB
may decline 	to 	assert 	jurisdiction 	under 	the NLRA 	as 	a 	result
of 	its 	interpretation of 	the NLRA 	is 	neither 	dispositive 	nor
persuasive 	as 	to the 	jurisdiction of 	PERB 	under 	the EERA. 	As
the 	hearing 	officer 	noted 	"the 	EERB[6] cannot 	simply 	assert
jurisdiction over 	employees 	not 	covered 	by the NLRB. 	There 	is
nothing 	in 	the 	EERA which 	expresses 	the 	legislative 	intent 	that
the jurisdiction of 	the EERB 	should 	extend 	up to the 	boundaries
of NLRB 	jurisdiction."
SEIU 	additionally contends 	that Abbey 	is 	a 	"de 	facto"
branch 	of 	the District, 	under 	a constitutional 	theory that
action by Abbey was 	"state 	action." 	On this point, 	the Board
affirms 	the 	hearing 	officer's 	finding 	that 	the 	issue 	in 	this
case 	is 	limited 	to 	interpretation of 	the 	jurisdictional
provisions 	of 	the EERA in light 	of 	the facts.
5Public 	employers 	are not 	employers 	within 	the meaning of
the National Labor Relations Act 	(hereafter NLRA). 	Section 	2,
of 	the NLRA 	states 	in pertinent part:
(2) 	The term "employer" 	includes 	any person
acting as 	an agent of 	an employer, 	directly
or 	indirectly, 	but shall 	not 	include the
United 	States 	or 	any wholly owned Government
corporation, 	or 	any Federal Reserve Bank, 	or
any 	State or 	political 	subdivision
thereof....
The NLRA, 	as 	amended, 	is 	codified at 	29 USC 151 	et seq.
6Prior 	to 	the 	enactment 	of 	the 	State Employer-Employee
Relations Act, 	effective January 1, 	1978, 	the PERB was
designated 	as 	the 	Educational 	Employment 	Relations 	Board 	(EERB) •
7

Finally, SEIU appeals the hearing officer's refusal to
consider evidence concerning the relationship between Abbey and
the Fresno County Superintendent of Schools. 	The hearing
officer rejected the proffered evidence on the grounds that the
county superintendent had not been named as a party either in
SEIU's original charge, amended charge, or at the hearing, and
that the evidence was not relevant to proof of the nature of
the relationship between Abbey and the District. We agree.
ORDER
Upon the entire record in this case, the Public Employment
Relations Board ORDERS that the unfair practice charge filed by
Service Employees International Union, Local 110, AFL-CIO,
against the Fresno Unified School District and Abbey
Transportation System, Inc., is dismissed.
By: Harry Gluck, Chairperson 	Jerilou Cossack Twohey, Memberr
Raymond J. Gonzales, Member, concurring:
My reason for dismissing the unfair practice charge filed
in this case is based solely on a finding that neither the
employees of Abbey Transportation System, Inc., nor Abbey
Transportation System, Inc., fall within the plain language of
8
Finally, 	SEIU 	appeals 	the 	hearing 	officer's 	refusal 	to
consider 	evidence 	concerning 	the 	relationship 	between Abbey 	and
the 	Fresno County 	Superintendent 	of 	Schools. 	The 	hearing
officer 	rejected 	the 	proffered 	evidence 	on 	the 	grounds 	that 	the
county 	superintendent 	had not 	been named 	as 	a 	party 	either 	in
SEIU ' s 	original 	charge, 	amended charge, 	or 	at 	the 	hearing, 	and
that 	the 	evidence 	was 	not 	relevant 	to proof 	of 	the 	nature 	of
the 	relationship 	between Abbey 	and 	the 	District. 	We 	agree.
ORDER
Upon 	the 	entire 	record 	in 	this 	case, 	the 	Public 	Employment
Relations 	Board ORDERS 	that 	the 	unfair 	practice 	charge 	filed 	by
Service 	Employees 	International 	Union, 	Local 	110, 	AFL-CIO,
against 	the 	Fresno Unified 	School 	District 	and Abbey
Transportation System, 	Inc., 	is 	dismissed .
I 	- 	/ 	,
By : 	Harry Gluck, 	Chairperson
(
Jerilou Cossack Twohey, 	Memberc
I
Raymond J . 	Gonzales, 	Member, 	concurring:
My 	reason 	for 	dismissing 	the 	unfair 	practice 	charge 	filed
in 	this 	case 	is 	based 	solely on 	a 	finding 	that 	neither 	the
employees 	of Abbey Transportation System, 	Inc., 	nor Abbey
Transportation System, 	Inc., 	fall 	within 	the 	plain 	languag'e 	of
8

Government 	Code 	sections 	3540.1(j) 	and 	3540.l(k),1 provisions
which define, 	respectively, 	a public 	school 	employee and a public
school 	employer. 	Given 	the language 	contained 	therein, 	this
Board is 	precluded from exercising jurisdiction 	in 	this 	matter.
While 	I 	can accept 	the notion 	that 	a public 	school 	employer
can be liable for the acts of its 	agents, 	I 	think the facts, 	as
recited 	in 	the majority opinion, 	make 	it 	eminently 	clear 	that
Abbey Transportation System, 	Inc., 	is 	an independent contractor
and not 	an agent of 	the Fresno 	Unified School 	District, 	and that
the 	employees 	who 	are 	alleging violations 	of Government 	Code
section 	3543.5(a)2 in several 	respects, 	are 	employees 	of Abbey
Transportation System, 	Inc., 	not 	the Fresno Unified School District.
11 Section 3540.l(j) 	defines 	a public 	school 	employee as:
. 	. 	. 	any person employed by any public school
employer 	except 	persons 	elected by popular vote,
persons 	appointed by 	the 	Governor of 	this 	state,
management 	employees, 	and confidential 	employees.
Section 3540.l(k) 	defines 	a public 	school employer as:
. 	. 	. 	the governing board of a school district, 	a
school 	district, 	a county board of education, 	or
a 	county 	superintendent 	of 	schools.
2Section 3543.5(a) 	reads:
It 	shall be unlawful 	for 	a public 	school 	employer to
(a) 	Impose or threaten to 	impose reprisals 	on
employees, 	to discriminate or threaten to discrimi-
nate against employees, 	or otherwise to 	interfere
with, 	restrain, 	or 	coerce employees because of their
exercise 	of rights 	guaranteed by 	this 	chapter.
9
1

The majority's discussion regarding the National Labor
Relations Board's jurisdictional standard for determining whether
separate concerns should be treated as a single employer, in my
view, is pure dictum. I do not wish to give the impression that
had the facts been stronger, perhaps Abbey Transportation System,
Inc., and the Fresno Unified School District could be considered a
single employer, thereby allowing the Board to exercise jurisdic
tion over the employees in this case.
In all other respects, I agree with the majority decision.
10
The 	majority ' s 	discussion 	regarding 	the 	National 	Labor
Relations 	Board ' s 	jurisdictional 	standard 	for 	determining whether
separate 	concerns 	should be · treated as 	a 	single 	employer, 	in my
view, 	is 	pure 	dictum . 	I 	do not wish 	to 	give 	the 	impression 	that
had 	the 	facts 	been: 	stronger, 	perhaps 	Abbey 	Transportation System,
Inc . , 	and 	the 	Fresno 	Unified 	School 	District 	could be 	considered 	a
single 	employer, 	thereby allowing 	the 	Board 	to 	exercise 	jurisdic -
tion 	over 	the 	employees 	in 	this 	case .
In 	all 	other 	respects, 	I 	agree with 	the majority 	deciision .
Raymond J. Gonzales Member
10

EDUCATIONAL EMPLOYMENT 	RELATIONS 	BOARD
OF THE 	STATE 	OF 	CALIFORNIA
LOCAL 	110, 	SERVICE 	EMPLOYEES
INTERNATIONAL UNION, 	AFL-CIO,
Charging 	Party,
vs.
FRESNO 	UNIFIED 	SCHOOL 	DISTRICT
(ABBEY TRANSPORTATION SYSTEM, 	INC.),
Respondent.
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) 	Case No. 	S-CE-23
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) 	RECOMMENDED DECISION
) 	(12/21/77)
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Appearances: 	Robert J. 	Bezemek, 	Attorney 	(Van Bourg, 	Allen,
Weinberg and Roger) 	for 	the Local 	110, 	Service Employees
International Union, 	AFL-CIO; 	Lee T. 	Paterson, Attorney
(Paterson and Taggart) 	for Fresno 	Unified School 	District;
Jack M. 	Tipton, 	Attorney 	(Wild, 	Carter, 	Hamlin, 	Tipton and
Quaschnick) 	for Abbey Transportation System, 	Inc.
Before Franklin Silver, 	Hearing Officer.
PROCEDURAL 	HISTORY AND 	ISSUE
On January 7, 	1977 	the Service Employees
International Union, 	Local 110, 	AFL-CIO 	(hereafter 	"union"
or 	"charging party") 	filed an unfair practice 	charge 	alleging
discriminatory 	discharges 	of fourteen 	individuals. 	The
charge 	alleged:
The 	employees 	against whom violations 	were
committed were 	employed 	at 	Abbey 	Transportation
System, 	Inc., 	an agent, 	instrumentality and/or
closely 	related 	operation 	of 	the 	Fresno 	Unified
School 	District. 	The 	addresses 	of 	the 	above
named employer 	are as 	follows....
-1-
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The 	addresses 	of both 	the 	Fresno 	Unified 	School 	District
(hereafter "district") 	and Abbey Transportation System, 	Inc.
(hereafter 	"Abbey") 	are 	listed as 	those of 	the 	"employer."
Abbey 	and the 	district 	filed 	separate 	answers 	to
the 	charge. 	The 	district 	denied that Abbey was 	an agent,
instrumentality 	and/or 	closely 	related 	operation 	of 	the
district, 	and Abbey 	challenged 	the jurisdiction of 	the
Educational Employment Relations 	Board 	(EERB) 	to 	decide
the matter.
On April 	4 Abbey 	filed a motion 	for 	summary
judgment 	in which 	it 	argued 	that 	the 	charge 	should be
dismissed because 	the 	employees 	alleged 	to have been unlaw-
fully 	discharged were not 	"public 	school 	employees" within
the meaning 	of 	the 	Educational 	Employment Relations 	Act
(EERA). 	On April 	15 	the 	district 	filed a motion for summary
judgment 	supported by 	the 	declaration 	of 	the 	associate
superintendent 	in 	charge 	of business 	to 	the 	effect 	that
none 	of 	the 	individuals 	alleged 	to have been 	discriminated
against were 	employees 	of 	the 	district.
A hearing 	in this matter was 	held on April 	27-29,
1977 	in Fresno.1 1 At 	the outset of the hearing, 	the district
presented 	a new motion 	for 	summary 	judgment with additional
evidentiary 	support, 	and Abbey 	presented 	the 	declaration 	of
its president, 	Jack Sawl, 	stating that Abbey is 	a privately
held 	California 	stock 	corporation having 	a 	contractual
1The case was 	submitted on August 	31, 	1977.	1
-2-

arrangement with 	the 	district 	for 	the 	transportation of 	certain
pupils 	and 	that 	the 	alleged 	discriminatees 	had been 	employed
by Abbey rather 	than 	the 	district. 	Rulings 	on 	the 	legal
issues 	raised by 	the motions were 	reserved 	for 	the presenta-
tion 	of 	additional 	evidence 	relating 	to 	the jurisdiction
of the EERB 	to 	consider 	the merits 	of 	the 	charge.
During 	the 	course of 	the hearing, 	the union 	sought
to 	introduce 	evidence 	relating 	to 	common 	supervision of
certain 	employees 	by Abbey 	and the 	office 	of 	the 	Fresno
County 	Superintendent 	of Schools. 	The evidence was 	rejected
on 	the 	grounds 	that 	the 	county 	superintendent had not been
named as 	a party, 	and it was not relevant 	to proof of an
agency relationship 	or 	joint 	employership 	between Abbey 	and
the 	district. 	The union 	specifically 	declined 	to name 	the
county superintendent as 	a party to 	this 	case.2
Evidence was received, 	however, 	relative to the
amount 	of revenue 	derived by Abbey 	from 	its 	dealings 	with
both 	the 	district 	and 	the 	county 	superintendent. 	This
evidence was 	relevant 	to 	the 	degree 	of control 	exercised
2During the 	course of 	the hearing, 	the union filed a 	separate
charge 	against 	the 	county 	superintendent 	and Abbey making
essentially 	identical 	allegations 	as 	in 	the present 	case.
Proceedings 	in that 	case, 	number S-CE-57, 	were 	stayed pending
determination of 	the jurisdictional 	issue 	in 	the present
case. 	At 	the hearing, 	the union 	took the 	consistent position
that 	it 	did not 	regard 	the 	county 	superintendent 	as 	a
necessary party 	and wished 	to 	proceed without 	consolidating
the 	two 	cases. 	In its 	post-hearing brief the union makes 	an
oblique 	request 	to 	consolidate 	the 	two 	cases 	and to 	re-open
the 	record 	to 	receive 	the proffered evidence 	on 	common 	super-
vision by 	the 	county 	superintendent 	and Abbey. 	Since 	the
hearing proceeded, 	at 	the union's 	insistence, 	without joining
the 	county 	superintendent, 	it 	is 	concluded 	that 	the union has
waived any right 	to have 	the 	two 	cases 	consolidated.
-3-

by 	the 	district 	over Abbey's 	operations, 	and it 	showed that
approximately 45 	percent 	of Abbey's 	business was 	attributable
to 	the 	district 	and 45 	percent was 	attributable 	to 	the
county 	superintendent. 	Based upon 	this 	evidence, 	the 	district
made 	a motion 	to 	dismiss 	for 	lack of jurisdiction due 	to 	the
failure 	to join 	indispensable parties 	(the 	county 	superinten-
dent 	and 	the Fresno County Department of Education). 	This
motion was 	taken under 	submission.
The hearing was 	conducted 	in 	such 	a manner 	as 	to
allow 	the union 	to present 	initially 	its 	evidence 	pertaining
to 	the 	relationship between Abbey 	and 	the 	district 	for 	the
purpose 	of 	determining 	the 	jurisdictional 	issue. 	Evidence
relating 	to 	the 	alleged 	discriminatory 	dismissals 	was 	deferred
to 	the 	extent 	feasible. 	After 	three 	days 	of hearing 	the
record was 	closed on the issue 	of jurisdiction, 	while 	it
remained open 	to hear 	further 	evidence 	on 	the 	dismissals
if necessary. 	The hearing 	on the 	dismissals was 	continued
indefinitely 	due 	to probable 	lack 	of jurisdiction, 	and 	the
parties were 	given 	the 	opportunity 	to brief 	that 	issue.
This 	decision, 	therefore, 	addresses 	solely the 	issue of
whether 	the EERB has 	jurisdiction 	to 	entertain 	the 	unfair
practice 	charge.
-4-

FINDINGS 	OF 	FACT
Abbey 	is 	a privately held 	California 	stock 	corpo-
ration 	located in Fresno, 	California. 	Its business 	consists
primarily 	of 	transporting 	physically handicapped, 	educationally
handicapped, 	and mentally retarded pupils 	to 	and 	from 	school.33
Abbey 	contracts 	to 	render 	these 	services with various 	school
districts 	in the Fresno 	area, 	the Fresno County Superintendent
of Schools, 	certain private 	schools, 	and individual parents.
The major portion of Abbey's 	business, 	roughly 90 percent,
is 	divided between 	the 	Fresno Unified School District, 	the
respondent herein, 	and 	the Fresno 	County 	Superintendent 	of
Schools. 	Forty to 	fifty percent of Abbey's business 	is with
the Fresno 	Unified 	School 	District.
The 	district has 	contracted with Abbey 	to 	provide
bus 	services 	since 	1957. 	The 	current 	contract 	is 	effective
for the term of September 4, 	1975 	through June 30, 	1980.
Pursuant 	to 	the 	contract, 	Abbey 	transports 	approximately
535 	pupils 	in 	the 	district's 	special 	education program.
The 	contract was 	awarded 	to 	Abbey 	through 	a 	competitive
bidding process 	in which Abbey 	submitted 	the 	low bid.
-5-
J Abbey 	also provides 	some 	charter 	services 	for 	school 	and
community 	events. 	Student 	organizations within 	the Fresno
Unified 	School 	District 	charter buses 	for 	their 	activities
from Abbey, 	Greyhound, 	or 	other bus 	lines on a competitive
basis. 	There 	is no arrangement between the 	district 	and
Abbey 	to utilize only Abbey buses 	for 	charters.
-5-

The 	contract 	does 	not 	contain any provision which
explicitly gives 	the 	district any 	control 	over 	the employ-
ment relations between Abbey and its bus 	drivers. 	The
contract 	is basically 	limited to provisions 	concerning 	the
manner and rate of payment 	for 	transportation of pupils,
standards 	for equipment used in transporting pupils, 	main-
tenance of discipline on buses, 	and routes 	and time of
delivery. 	In addition, 	there are provisions 	dealing with
termination and renewal 	of 	the 	contract.
The 	contract provides 	that payment 	is based on a
daily rate multiplied by 	the 	number 	of pupils 	authorized
by the 	district 	to be 	transported. 	The initial rate was
that 	submitted by Abbey when bidding 	for 	the 	contract.
Thereafter, 	the contract provides 	that 	the rate is 	to be
adjusted once 	each year 	according 	to 	a formula which 	is
based 	solely on yearly variations 	in 	the 	average 	consumer
price 	index. 	The rate adjustment does not 	take 	into 	account
Abbey's 	costs 	in rendering 	services, 	although 	if Abbey can
present 	proof that 	it has 	incurred 	substantial 	increases 	in
its 	costs 	(i.e., 	increases out of line with the increase in
the consumer price index), 	it may terminate the contract.
The present 	contractual 	rate 	adjustment 	formula
was 	instituted 	due 	to problems 	in making rate adjustments
under 	the previous 	contract. 	That 	contract 	allowed Abbey
and 	the 	district 	to renegotiate 	the rate based upon Abbey's
actual operating costs. 	Thus, 	Abbey was in the position of
-6-

having 	to justify 	increases 	to 	the 	district. 	The record 	is
unclear 	as 	to whether Abbey's 	labor 	costs were 	ever 	a 	sub-
stantial 	problem in 	renegotiating 	the 	rate 	under 	the 	old
contract. 	Under 	the new formula, 	however, 	the district
clearly has no 	direct 	influence 	over 	salaries 	and fringe
benefits 	paid to Abbey's 	employees. 	The formula is 	absolute,
and 	if Abbey's 	costs 	increase more 	than 	the 	consumer 	price
index, 	it must 	either absorb 	the difference 	or attempt 	to
have 	itself released 	from 	the 	contract.
Payment 	is based on the 	total number 	of 	students
authorized by 	the 	district 	for 	transportation. 	The 	district
«
notifies 	Abbey 	of 	any 	additions 	or 	deletions 	from 	the
authorized list. 	If a pupil 	is 	unable 	to attend 	school
on a particular 	day, 	however, 	the amount payable 	to Abbey
is not affected. 	In practice, 	parents notify Abbey's
dispatcher, 	rather than the 	district, 	if the pupil 	is not
able 	to attend 	school, 	and the 	driver 	simply 	does not 	stop
for 	that 	child.
With 	regard to 	equipment, 	the 	contract 	provides
basically 	that 	all 	vehicles 	must 	comply with requirements
of the Education Code, 	the Motor Vehicle Code, 	and regulations
of 	the 	California 	Department 	of Education pertaining 	to 	school
buses. 	The buses must be 	specifically 	designed 	to 	transport
handicapped persons 	and must have 	specified passenger
capacities.
-7-

With regard 	to routes 	and time of delivery, 	the
contract provides 	that pupils 	are 	to be picked up 	at 	their
homes 	and 	delivered 	to 	their respective 	schools 	not 	earlier
than thirty minutes before school 	starts, 	and they are 	to be
returned 	to 	their homes within one hour of 	the 	time 	that
they are picked up at 	school 	in the afternoon. 	The 	contract
reserves 	to the district the final approval of routes,4
although 	in practice 	the 	determination of routes 	is 	left
to Abbey. 	Testimony at 	the hearing 	established 	that 	the
district's 	department 	of 	special 	education provides Abbey
with a 	list 	of students who need 	transportation and 	their
addresses. 	In addition, 	Abbey has 	lists 	of other pupils
who require 	transportation pursuant 	to various 	other 	contracts
(primarily 	its 	contract with the county superintendent).
Abbey 	then divides 	its 	total 	list of pupils 	into bus 	routes
according to geographic areas. 	The routes 	generally include
students 	attending Fresno 	city schools 	as well 	as 	schools
outside the district's jurisdiction. 	There 	is no attempt
to 	segregate the district's 	students 	into 	separate routes.
The 	district notifies 	Abbey of any 	additions 	or deletions
to 	its 	list of pupils 	authorized for transportation, 	and
Abbey makes 	the necessary adjustments 	in routes.
4 The contract provides, "The routes to be followed in all
cases 	shall be 	the 	shortest 	and safest practicable routes
satisfactory 	to 	the 	Board of Education of 	the Fresno 	Unified
School District 	and to 	the Director of Special Education."
In addition, 	it provides, 	"The Board of Education reserves
the right 	to 	adjust 	the hours 	of pick-up 	and delivery of
pupils 	if it becomes 	educationally desirable." 	With 	these
reservations, 	Abbey is 	totally free 	to 	set 	the routes within
the 	time 	limits 	established by 	the 	contract.
-8-
44

With 	regard 	to maintenance 	of discipline 	on buses,
the 	contract 	provides 	that 	the driver 	is 	responsible 	for
the orderly 	conduct 	of 	the 	pupils, 	and 	that Abbey may refuse
to 	transport 	any pupil who 	engages 	in 	continued disorderly
conduct. 	When a 	disciplinary problem arises 	on a bus, 	the
driver 	completes 	a 	triplicate 	form describing 	the 	circum-
stances.5 One 	copy is retained by Abbey, 	one copy is 	sent
to 	the parents, 	and one 	copy placed in 	the 	student's 	file
in the district's 	department of 	special 	education. 	The
district 	takes no 	action with regard to 	the report. 	If the
parents make 	inquiries 	of 	the 	district 	regarding 	the 	incident,
they are 	simply referred 	to Abbey.66
When 	a 	severe 	disciplinary problem arises, 	Abbey
has 	the option of withdrawing 	its 	services 	to 	the 	student
either 	for 	a 	limited period or permanently. 	The 	action 	to
be 	taken 	is 	determined by Abbey, 	and Abbey merely 	informs
the department 	of special 	education of its 	decision. 	The
department 	informs 	the parents 	that 	transportation 	is 	being
5	5 The 	form is 	entitled 	"Fresno 	Unified 	School 	District
Transportation Report 	to 	School 	Administrator." 	Although
it 	is 	apparently a 	standard 	form used by 	the 	district's
regular bus 	drivers, 	testimony at 	the hearing, 	was 	confused
as 	to why 	this 	form is 	used by Abbey. 	The record 	is 	clear,
however, 	that 	the form is not 	sent 	to 	the 	school administrator
for action.
6
-9-
5
6 There was 	testimony regarding 	one 	occasion, 	approximately
a year before 	the hearing, 	when 	the 	district's 	director 	of
special 	education met with an Abbey bus 	driver 	to 	compare
the bus 	driver's 	description of an 	incident with 	that 	of
a parent. 	The director did not, 	however, 	contact anyone at
Abbey 	regarding 	the 	incident 	and 	there was 	no 	follow-up 	or
disciplinary 	action.

denied and refers 	the parents 	to Abbey 	if necessary 	to
discuss 	the appropriateness 	of 	the 	action. 	When 	a 	student
is 	denied 	transportation by Abbey, 	the parents 	are respon-
sible 	for 	seeing 	that 	the 	student 	gets 	to 	and from school.
In addition to 	the 	fact 	that 	the contract 	does
not 	provide 	that 	the 	district 	has 	any 	control 	in 	the 	area
of labor 	relations 	between Abbey and 	its 	employees, 	testimony
at 	the hearing 	established 	that 	in practice 	the 	district
exercises 	no 	supervisory 	authority 	over Abbey 	employees.
Abbey 	interviews 	and hires 	its 	own 	employees without 	involve-
ment 	by the 	district. 	All 	training 	of new employees
necessary 	to 	obtain proper 	licenses 	to 	drive 	school buses
is 	performed 	entirely by Abbey personnel. 	All 	route assign-
ments 	are made by Abbey. 	Wages 	and 	fringe benefits 	are
determined 	and 	paid by Abbey. 	Abbey 	employees 	have no
employment 	rights with the district. 	Sick 	leave 	is 	granted
by Abbey. 	Evaluations 	are performed by Abbey.
On occasion, 	parents 	or other members 	of the
public 	call 	the 	district 	to 	lodge 	complaints 	about 	the
manner 	in which particular buses 	are being 	driven or 	a
similar problem. 	District 	personnel 	cannot 	even 	identify
the 	particular 	driver 	if only 	the bus 	number or 	the name
of a 	child on the bus 	is 	given, 	and 	in any 	case 	the 	district
does 	no more 	than refer 	the 	complaint 	to Abbey. 	The 	district
has 	no procedure 	for 	following up 	such 	complaints.
-10-

Two 	of 	the 	fourteen employees 	on whose behalf 	the
unfair practice charge was 	filed 	testified as 	to 	the
circumstances 	of their 	dismissals 	by Abbey. 	Since 	the
question of whether 	those 	dismissals were based on organi-
zational 	activities 	is 	not being 	addressed in this 	recommended
decision, 	it is not necessary to make 	findings with respect
to 	all 	circumstances 	of those discharges. 	What 	is 	relevant
to 	the jurisdictional 	issue is 	that 	those 	dismissals were
entirely 	carried out by 	supervisory personnel 	at Abbey 	and
that 	district 	personnel were not 	in any way 	involved.
CONCLUSIONS 	OF LAW
This 	unfair practice 	charge 	alleges 	a violation
of Government Code section 3543.5(a).7V That section pro-
hibits 	discrimination against 	"employees" by a 	"public
school 	employer" because of the exercise of rights 	guaranteed
by the Educational Employment Relations Act 	(EERA). 	Section
3540.1 provides 	definitions 	of various 	terms 	used in the
EERA. 	Section 3540.l(j) 	provides:
"Public 	school 	employee" or "employee"
means 	any person 	employed by 	any public
school 	employer except 	persons 	electe	- 	d
by popular vote, 	persons 	appointed by the
Governor of this 	state, 	management employees,
and confidential 	employees, 	(Emphasis 	added.)
7 Hereafter, 	all 	statutory references 	are to 	the Government
Code unless 	otherwise noted.
-11-
7

Section 3540.l(k) 	provides:
"Public 	school 	employer" 	or 	"employer"
means 	the governing board of 	a 	school
district, 	a school district, 	a county
board of education, 	or a county super-
intendent of schools.
Quite 	clearly, 	Abbey 	is not 	itself 	a 	"public 	school
employer" as defined above. 	Cf. 	SEIU, 	Local No. 	22 v.
Roseville Community Hospital, 	24 Cal.App.3d 400 	(1974).
Therefore, 	if the EERB has jurisdiction in this matter, 	it
must be because of Abbey's 	relationship with the district.8
U 8The union 	argues 	that Abbey 	is within 	the 	jurisdiction of
the EERB because of 	its 	"intimate relation 	to 	the Fresno
Unified 	School 	District 	and 	the 	Fresno 	County 	Superintendent
of Schools." 	As previously noted 	(see n. 	2, 	supra) 	the
union 	specifically 	declined 	to 	name 	the 	county 	superintendent
as 	a party to 	this 	action, 	and evidence of 	the 	county super-
intendent's 	control 	over Abbey 	employees was 	not 	admitted.
Nowhere 	does 	the union 	suggest 	a 	legal basis 	for 	imputing
responsibility 	for unfair practices 	to 	the 	county 	superin-
tendent 	- - a 	"public 	school 	employer" 	within 	the meaning 	of
section 3540.l(k) 	-- without joining 	the 	county 	superintendent
as 	a party. 	Since 	the union chose 	to proceed 	in 	this 	case
without 	affording 	the 	county 	superintendent 	the 	opportunity
to make 	a 	presentation 	concerning 	the relationship between
that 	office 	and Abbey, 	this 	recommended 	decision considers
only whether 	the relationship 	between Abbey 	and 	the 	district
is 	a 	sufficient basis 	for Jurisdiction.
One 	of 	the motions 	for 	summary judgment 	by 	the 	district
argues 	that 	the 	EERB 	lacks 	jurisdiction on 	the 	grounds 	that
the 	county 	superintendent 	is 	an 	indispensable 	party. 	Because
this 	decision concludes 	that 	the EERB 	lacks 	jurisdiction 	on
other grounds, 	it 	is not necessary to 	consider this argument.
-12-
V

This raises 	two questions: 	(1) 	whether the statutory-
definition of 	"public 	school 	employer" may 	include by
implication 	a private 	employer which 	is 	so 	closely related
in 	its 	operations with a 	school 	district 	that 	the 	two
employers 	may be 	considered 	a 	single 	employer, 	and
(2) 	whether Abbey and the district 	are 	so 	closely related
that 	they may be 	considered 	a 	single 	employer 	for 	jurisdic-
tional 	purposes. 	Because 	the 	second 	question must be
answered in the negative, 	it 	is unnecessary to make a deter-
mination with regard 	to 	the 	first 	question.
The 	issues 	can be 	clarified by 	a brief 	examination
of 	the 	treatment 	of a 	somewhat 	analogous 	problem which 	arises
under 	the National Labor Relations Act, 	as 	amended. 	The
NLRB has 	jurisdiction 	to 	conduct 	representation 	elections
and remedy unfair 	labor 	practices with respect 	to business
concerns whose 	labor management 	relations 	"affect" 	interstate
commerce. 	The NLRB, 	however, 	also has 	the discretion to
limit 	its 	assertion of jurisdiction 	to 	those 	cases where
there 	is 	a 	substantial 	effect upon 	interstate 	commerce.
Optical Workers Local 24859 v. 	NLRB, 	227 F.2d 687, 	37 LRRM
2188 	(5th Cir., 	1955); 	Office Employees International Union
v. 	NLRB, 	235 F.2d 832, 	38 LRRM 2269 	(D.C. 	Cir., 	1956). 	See
NLRB Twenty-First Ann. 	Rep.; 	NLRB Outline of its 	Jurisdic-
tional 	Standards, 	39 LRRM 44. 	To determine whether 	to
assert jurisdiction in a particular 	case, 	the NLRB has
established 	"jurisdictional 	standards" 	relating 	to 	the
volume 	of business 	in interstate 	commerce. 	If a particular
-13-

concern does 	not 	do 	a 	sufficient 	volume 	of 	interstate
commerce, 	the NLRB 	in its. discretion will not assert juris-
diction over 	that 	concern 	although 	there may be 	a 	legal
basis 	for jurisdiction.
In applying its jurisdictional 	standards, 	the
NLRB has 	a practice 	of 	treating 	separate 	concerns 	which
are 	closely related 	as 	being 	a 	single 	employer 	for 	the
purpose 	of 	determining whether 	to 	assert 	jurisdiction.
The 	factors 	which 	are weighed 	in 	deciding whether 	sufficient
integration of 	the businesses 	exists 	include 	the 	extent 	of:
(1) 	interrelation of operations;
(2) 	centralized control 	of labor relations;
(3) 	common management; 	and
(4) 	common ownership or 	financial 	control.
See Radio and T.V. 	Local 1264 v. 	Broadcast Service, 	380 U.S.
255, 	58 LRRM 2545 (1965) .
Whether 	a private 	employer might 	in 	some 	circum-
stances 	be 	subject 	to EERB 	jurisdiction under 	the 	terms 	of
section 	3540.l(k) 	is 	at best 	doubtful.9 However, 	even assurning
that 	Abbey 	could be 	subject 	to 	the 	jurisdiction 	of 	the EERB
ning
Although 	there 	is 	extensive 	federal 	precedent 	analyzing
whether 	separate business 	concerns 	are a 	single 	employer 	for
"jurisdictional" purposes, 	the NLRB and the 	federal 	courts
have 	not had 	to 	confront 	in 	these 	cases 	the question of
statutory 	interpretation which 	is 	present 	in 	this 	case, 	i.e.,
whether 	one 	of 	the 	concerns 	is 	an 	employer within 	the meaning
of 	the 	statute which 	is being 	enforced. 	Since 	the NLRB's
legal 	jurisdiction 	is 	broader 	than 	the 	area where 	it 	exercises
its 	discretion in asserting jurisdiction, 	it does not need to
employ 	the 	"single 	employer" 	doctrine 	to determine 	the bound-
aries 	of 	its 	legal jurisdiction.
-14-

if 	its 	relationship with 	the 	district met 	the NLRB 	criteria
for 	finding a 	single 	employer, 	it 	is 	quite 	clear 	that 	those
criteria are not 	satisfied in 	this 	case. 	The district
cannot 	under 	the 	contract 	involve 	itself 	in Abbey's 	operations
except 	in very 	limited areas. 	In practice, 	the district's
involvement 	is minimal. 	With regard 	to 	route assignments,
although the district has 	the right of final 	approval, 	in
practice 	the routes 	are 	entirely 	determined by Abbey. 	By
the new 	contractual 	formula 	for 	adjusting 	the 	rate 	of payment
for 	services 	rendered by Abbey, 	the 	district has 	totally
removed 	itself 	from having 	any 	direct 	influence 	over 	the
cost 	of Abbey's 	operations. 	Abbey must 	simply keep 	the
costs 	of 	its 	operations within 	the rate 	of 	inflation or 	the
contract will 	cease 	to be profitable. 	The 	district 	exercises
no 	supervisory 	control 	over Abbey's 	employees. 	Abbey's
employees 	have no 	employment 	rights 	with 	the 	district.
There 	is 	no 	common management 	of Abbey 	and the 	district.
That 	there 	is 	no 	common ownership 	or 	financial
control 	of 	the 	two 	entities 	is 	self-evident. 	The 	district 	is
a 	governmental 	body with 	an 	elected 	governing board. 	There
is 	no 	evidence 	that 	the 	school 	district 	or 	any person repre-
senting 	the 	district has 	any 	financial 	interest 	in Abbey.
In New York Publi. .. c 	Library v. 	New York State 	Public
Employment Relations 	Board, 	357 N.Y.S.2d 522, 	87 	LRRM 2632
(1974), 	aff'd 374 N.Y.S.2d 625, 	90 LRRM 2463 	(1975), 	it was
decided 	that 	the 	public 	library 	and New York 	City were 	not
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"joint 	public 	employers" within 	the meaning 	of New York's
Taylor Act. 	The 	library was 	chartered as 	a private
corporation 	pursuant 	to 	enabling 	legislation 	providing
for 	the 	establishment 	and maintenance 	of 	a 	system of 	free
circulating 	libraries. 	In 1901 	the 	library and the 	city
entered 	into 	a 	contract 	under which 	the 	city 	agreed 	to
furnish 	sites 	and provide 	for 	the maintenance 	of branch
libraries 	to be built by 	the library 	corporation. 	The
library, 	however, 	maintained control over the persons 	it
employed. 	It was 	found 	that 	the 	library was 	virtually
entirely 	dependent upon the 	city for 	its 	operations, 	that
the 	library 	submitted 	its 	proposed budgets 	to 	the 	city 	for
approval, 	and 	that 	the 	library had voluntarily 	come under
the 	city's 	career 	and 	salary plan. 	The court 	declined 	to
pass 	on the 	question of whether 	a private 	employer 	and a
public 	employer might 	together 	constitute 	a 	"joint 	public
employer" 	as 	that 	term is 	used in the Taylor Act. 	On the
facts, 	however, 	the court found that 	since 	the library
retained 	general 	control 	over 	the 	direction 	and management
of 	its 	own 	affairs 	and 	specifically retained 	the power 	to
hire, 	fire, 	and supervise its 	employees, 	the library was
the employer and not the city.10 10
10 10In the New York Public Library case, the court noted in
support 	of 	its 	conclusion 	that 	employees 	of 	the 	library
could not 	be 	placed under 	civil 	service 	since 	the 	Civil
Service Law applies 	only 	to 	officers 	and employees 	of 	the
state. 	The 	district makes 	a similar argument here. 	The
district notes 	that 	under Education 	Code 	section 	45103
(formerly 13581), 	which applies 	to non-merit 	system districts,
and 45241 	(formerly 13703), 	which applies 	to merit 	(con't)
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10
10

In the present case, 	there is 	far less reason to
conclude 	that 	there 	is 	a joint 	or 	single employer relation-
ship 	than 	in the New York Public Library case. 	Abbey 	does
not 	submit 	its 	operating budget 	to 	the 	district 	for 	approval
and Abbey's bus 	drivers have no 	employment rights with 	the
district. 	The 	district 	does not 	in any way 	subsidize Abbey's
operation 	in the way New York City 	supports 	the 	library.
The record 	indicates 	simply 	that 	the 	district 	and Abbey 	deal
with each other on an independent 	contractor basis.
The union argues 	that 	the EERB 	should assert
jurisdiction over Abbey because under Roesch Lines, 	Inc. ,
224 NLRB No. 	16, 	92 LRRM 1313 	(1976), 	the NLRB has declined
jurisdiction over bus 	companies 	under 	contract 	to 	California
school districts. 	The NLRB has 	found that 	the function of
providing transportation services 	to 	school 	districts 	is 	so
intimately related to 	the school districts' 	function as 	to
warrant 	the 	conclusion 	that 	those 	services 	are a municipal
function, 	and on this basis 	the bus 	companies 	share the
school districts' 	exemption from coverage of the NLRA.
lO(con't) 	system districts, 	the governing board of a school
district must 	take action to 	effect 	the employment of classified
employees by 	the 	district, 	and since no 	such action has been
taken with respect 	to 	these bus 	drivers 	they 	cannot be 	considered
"public school employees" as 	defined in the EERA. 	However, 	in
Pittsburg Unified School District, 	EERB Decision No. 	3, 	(October 14,
1976), 	it was determined that noon-duty supervisors, 	who are
specifically 	excluded 	from 	the 	classified 	service 	under 	Education
Code 	section 45103, 	may be considered 	"public 	school 	employees"
within 	the meaning of the EERA, 	and they were included 	in a
paraprofessional unit. 	In the present case, 	therefore, 	the fact
that 	the 	governing board has 	not 	taken action to 	classify 	the
bus 	drivers 	is not 	dispositive of the issue of whether 	those
drivers have rights 	under 	the EERA.
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(29 U.S.C 	sec. 	152(2).) 	See also, 	Columbia Transit Co.,
226 NLRB No. 	115, 	93 LRRM 1396 	(1976); 	Camp Town Bus Lines,
226 NLRB No. 	3, 	93 LRRM 1140 	(1976); 	Transit Systems, 	Inc.,
221 NLRB No. 	53, 	90 LRRM 1471 	(1975). 	In reaching this
conclusion 	the NLRB has 	in part 	relied upon 	the 	fact 	that
such 	contracts 	are 	subject 	to various 	provisions 	of 	the
Education Code, 	the Motor Vehicle Code, 	and regulations
of the State Board of Education. 11	11
Reliance on the 	above 	cases 	is misplaced.
Public 	school 	employers 	and 	employees 	are 	specifically
defined in 	the EERA. 	The 	EERB 	lacks 	jurisdiction 	in 	cases
not 	involving 	employers 	and 	employees 	meeting 	those 	defini-
tions. 	The 	EERB 	cannot 	simply 	assert 	jurisdiction over
employees 	not 	covered by 	the NLRB. 	There 	is 	nothing 	in 	the
EERA which 	expresses 	a 	legislative 	intent 	that 	the jurisdic-
tion of 	the 	EERB 	should 	extend up 	to 	the boundaries 	of NLRB
jurisdiction.
Finally, 	the union argues 	that Abbey is 	a de facto
branch 	of 	the 	school 	district 	under 	cases 	holding 	that
11	11 The union 	introduced 	in 	evidence 	a 	determination by 	the
Acting Regional Director of the NLRB, 	Region 20, 	dismissing
an unfair 	labor practice 	charge 	filed with respect 	to 	the
same 	dismissals 	involved 	in 	the present 	case. 	This 	dismissal
contains 	the same rationale 	expressed 	in the 	cases 	cited in
the text.
12Compare Labor 	Code 	section 1140.4(b) 	which defines 	"agricul-
tural 	employee" 	for purposes 	of the Agricultural Labor
Relations Act 	as 	one who 	is 	excluded 	from coverage 	of 	the
National 	Labor 	Relations 	Act 	under 	that 	act's 	agricultural
employee 	exemption.
-18-
11

Fourteenth Amendment applies to businesses whose operations	Fourteenth Amendment 	applies 	to 	businesses 	whose 	operations
are dependent upon governmental involvement to an extent	are 	dependent 	upon governmental 	involvement 	to 	an 	extent
sufficient to constitute state action. See Ginn v. Matthews,	sufficient 	to 	constitute 	state 	action. 	See 	Ginn v. 	Matthews,
533 F. 2d 477 (9th Cir. , 1976) . Such an argument is irrelevant	533 	F . 2d 477 	(9th Cir., 	1976). 	Such an a _rgument 	is 	irrelevant
to the issue in this case, which involves purely and simply	to 	the 	issue 	in 	this 	case, 	which 	involves 	purely 	and 	simply
statutory interpretation in light of the facts, rather than	statutory 	interpretation 	in 	light 	of 	the 	facts, 	rather 	than
the abridgement of constitutional rights. See SEIU, Local	the 	abridgement 	of 	constitutional 	rights . 	See · SEIU, · Local
No. 22 v. Roseville Community Hospital, supra, 24 Cal. App. 3d	No. 	22 v . 	Roseville Community Hospital, · s\ipra, 	24 	Cal. 	App. 3d
at 406,407 .	at 406, 407.
For the foregoing reasons, it is concluded that
the EERB lacks jurisdiction to proceed in this matter.
RECOMMENDED ORDER
Upon the foregoing findings of fact, conclusions of
law, and the entire record of this case, it is hereby ordered
that the unfair practice charge filed by the Service Employees
International Union, Local 110, AFL-CIO, against the Fresno
Unified School District and Abbey Transportation System, Inc.
is dismissed.
Pursuant to EERB Regulation 35029, this recommended
decision shall become final on January 4, 1978, unless a party
files a timely statement of exceptions. 	See Cal. Admin. Code,
Tit. 8, SS 35029, 35030.
Dated: December 21, 1977
Franklin Silver
Hearing Officer
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1
For 	the 	foregoing 	reasons, 	it 	is 	concluded that
the 	EERB 	lacks 	jurisdiction 	to 	proceed 	in 	this 	matter.
RECOMMENDED 	ORDER
Upon 	the 	foregoing 	findings 	of 	fact, 	conclusions 	of
law, 	and 	the 	entire 	record of 	this 	case, 	it 	is 	hereby ordered
that 	the 	unfair 	practice 	charge 	filed by 	the 	Service 	Employees
International Union, 	Local 	110, 	AFL-CIO, 	against 	the 	Fresno
Unified 	School 	District 	and Abbey Transportation System, 	Inc.
is 	dismissed .
Pursuant 	to 	EERB 	Regulation 	35029, 	this 	recommended
decision 	shall become 	final 	on January 	4, 	1978, 	unless 	a 	party
files 	a 	timely 	statement 	of 	exceptions. 	See 	Cal. 	Admin. 	Code,
Tit. 	8, 	§§ 	35029, 	35030 .
Dated : 	December 	21, 	1977
-19-
Franklin 	Silver
Hearing 	Officer