Auburn Bus Co.

National Labor Relations Board - Board Decisions

Jan 21, 1954

107 N.L.R.B. 919 (N.L.R.B. 1954)

AUBURN BUS COMPANY 919
SHAW BENDERLY AND BEN BENDERLY, d/b/a AUBURN
BUS COMPANY and AMALGAMATED ASSOCIATION OF
STREET, ELECTRIC RAILWAY AND MOTOR COACH EM-
PLOYEES OF AMERICA, DIVISION 1269, AFL. Case No.
3-CA-664. January 21, 1954
DECISION AND ORDER
On October 13, 1953, Trial Examiner Ralph Winkler issued
his Intermediate Report, a copy of which is attached hereto,
finding that the Respondent is not engaged in commerce or in
activities affecting commerce within the meaning of the Act,
and recommending that the complaint in this matter be dis-
missed. Thereafter, the General Counsel filed exceptions to
the Intermediate Report and a supporting brief.
The Board has reviewed the rulings of the Trial Examiner
made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The Board has
considered the Intermediate Report, the General Counsel's
exceptions and brief, and the entire record in the case and
hereby adopts the findings and conclusions contained in the
Intermediate Report.
[The Board dismissed the complaint.]
Member Murdock, dissenting:
I disagree with the refusal to assert jurisdiction in this case
following category 2 of the Board's jurisdictional plan as
announced originally in W. C. King d/b/a Local Transit Lines,
91 NLRB 623. The Board there said:
Our experience has shown that public utilities, including
public transit systems of the type here involved, have
such an important impact on commerce as to warrant
our taking jurisdiction over all cases involving such
enterprises, where they are engaged in commerce or
in operations affecting commerce, subject only to the
rule of de minimis. Accordingly, we will assert juris-
diction in this case and will hereafter assert jurisdic-
tion in all other cases involving public utilities and public
transit systems of the type here involved, subject only
to the foregoing limitation.
The Respondent in the instant case operates the only
public bus transportation in Auburn, New York. It serves em-
ployees of enterprises engaged in interstate commerce over
whom the Board asserts jurisdiction and runs special rush-
hour buses to accommodate workers in these plants. These
include the American Locomotive Co., Firth Carpet Co., the
General Electric Co., etc. The case clearly falls within the
jurisdictional plan as announced in the W. C. King case--
indeed Respondent has more employees and operates more
buses than the employer in that case.
107 NLRB No. 182.
920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
My majority colleagues have simply rubber-stamped the
Trial Examiner's Intermediate Report which dismisses the
case on the ground that it "falls within the Board's holding
in the San Jose i case." In the San Jose case, as the Trial
Examiner points out, the Board "without referring to its
established jurisdictional policy" dismissed a representation
case involving the public transit system of San Jose, Cali-
fornia.
Although both the instant case and the San Jose case are
departures from and inconsistent with the Board's juris-
dictional plan as laid down in the W. C. King case, neither
decision overrules that case, rationalizes the result, or
indicates what the substitute policy is for the assertion of
jurisdiction over public transit systems. I further note that
in the San Jose case the evidence indicated that the employer
was a part of a multistate transit system which would have
warranted the assertion of jurisdiction under another section
of the plan--as an integral part of a multistate enterprise.2
In other words, we are here confronted with the practice I
decried in my dissent in Taichert, Inc.,' of approaching
jurisdictional issues on an ad hoc basic without regard to
the Board's jurisdictional plan, casting doubt on established
doctrines, and leaving confusion as to what the Board's cur-
rent jurisdictional policy is.
I also note a further ground upon which jurisdiction could
be asserted here--the section of the plan which provides for
asserting jurisdiction over enterprises which substantially
affect the national defense. One of the plants served by this
transit system is an American Locomotive Co. plant which
manufactures tanks for the United States Army. I would assume
that an industrial dispute resulting in a stoppage of Re-
spondent's buses would interfere with employees of that
plant getting to work and thus adversely affect the production
of army tanks. In my Taichert, Inc., dissent I have stated my
views fully as to the importance of a liberal approach in
asserting jurisdiction over enterprises which substantially
affect the national defense and refer to that opinion.
Accordingly, for all the reasons above, I disagree with the
majority's departure from precedent and would assert juris-
diction over the Respondent.
1 San Jose City Lines, Inc., 106 NLRB 1167.
2 The Borden Co , 91 NLRB 628.
3107 NLRB 779.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon charges filed by Amalgamated Association of Street , Electric Railway and Motor
Coach Employees of America , Division 1269, AFL, a labor organization herein called
the Union, the General Counsel for the National Relations Board issued a complaint on July 7,
CHECKER TAXI COMPANY 921
1953, against Shaw Benderly and Ben Benderly , d/b/a Auburn Bus Company , herein jointly
called the Respondent , alleging that the Respondent had engaged in specified conduct violating
Section 8 (a) (1), (3), and (5) and Section 2 (6) and (7) of the Labor Mangement Relations Act,
1947, 61 Stat . 136, herein called the Act. Copies of the complaint and charges were served
upon the Respondent , and the Respondent in turn filed an answer denying the commission of
the unfair labor practices alleged.
Pursuant to notice , a hearing was held in Auburn, New York, on September 22, 1953,
before the undersigned Trial Examiner . The General Counsel and the Respondent were rep-
resented by counsel and all parties were afforded full opportunity to be heard , to examine
and cross -examine witnesses , and to introduce evidence bearing on the issues . The parties
were given opportunity to present oral argument before the Trial Examiner and also to file
briefs and proposed findings of fact and conclusions of law . The Respondent has moved to
dismiss the complaint on the merits , which motion I need not decide in view of the recom-
mended dismissal of the case on other grounds.
THE BUSINESS OF THE RESPONDENT
Respondent is a copartnership which owns and operates the only public bus system in
Auburn, New York , a town having an approximate population of 37,000 . Respondent has 35
employees and 18 buses . While some of Respondent 's routes pass the terminals of inter-
state passenger carriers ( rail and bus ), Respondent has no transfer or schedule arrange-
ment with these interstate services . There are some interstate industrial concerns ' located
in Auburn , one of which manufactures army tanks, and Respondent runs special buses to
accommodate employees working in these plants.
Respondent 's gross income in 1952 was approximately $ 260,000, and its yearly purchase of
supplies and equipment is approximately $ 45,000, of whichamount approximately $ 3,000 rep-
resents direct out-of-State purchases . Respondent obtained its motor coaches from out of the
State at an approximate cost of $ 180,000 when it entered the transit business in January 1950.
The partnership does not own or operate any other transit lines , except that 1 of the Re-
spondent partners does own a bus line in a New York State township of approximately 1,000
inhabitants . The partnership has an application pending before the New York State Public
Service Commission for the intrastate bus franchise between Auburn and Syracuse , New York.
In W. C . King d/b/a Local Transit Lines, 91 NLRB 623, the Board declared , in connection
with formulating general jurisdictional standards , that it would assert juris6 :ction over all
public transit systems within the Board 's legal competency , " subject only to the rule of
de minimis ." Under this test the present action might be entertained. Recently , however, in
San Jose City Lines, Inc ., 106 NLRB 1167, the Board dismissed a representation petition
on jurisdictional grounds but without referring to its established jurisdictional policy.
Except to indicate that the San Jose City Lines, Inc., is a subsidiary of an enterprise in-
corporated and operating in another State, the Board's decision in that case discloses no
other underlying facts pertaining to the jurisdictional question . I would presume , however,
that in a city of San Jose 's location and size--approximately 95,000 inhabitants , according
to the 1950 census --thepublic transit lines , as in the case of Respondent Auburn Bus Company,
also serve employees of enterprises engaged in interstate commerce and operate routes
in the vicinity of interstate carrier terminals.
I find that the instant case falls within the Board's holding in the San Jose case and that, in
the language of that case , Shaw Benderly and Ben Bende rly , d/b/a Auburn Bus Company , Auburn,
New York, are "notengaged in commerce or in activities affecting commerce , within the mean-
ing of the Act." I recommend , accordingly , that the complaint in this matter be dismissed.
1 For example: American Locomotive Co., General Electric Co., and U . S. Hoffman
Machinery Corp.
CHECKER TAXI COMPANY and NEW ENGLAND TAXI CAB
DRIVERS UNION, LOCAL 1, Petitioner . Case No. 1-RC-
3374. January 21, 1954
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Sidney A.
107 NLRB No. 181.