Charleston Transit Co.

National Labor Relations Board - Board Decisions

Mar 30, 1955

111 N.L.R.B. 1214 (N.L.R.B. 1955)

1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. We find that all hourly paid employees at the Employer's retail
glass and allied products sales branch warehouse at Houston, Texas,
including truckdrivers, warehousemen, warehousemen helpers, box
makers, order fillers, order clerks, packers and leadermen, the shipping
clerk, the metals man, and the office porter, but excluding office clerical
employees, professional employees, guards, watchmen, and supervisors
as defined in the Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9 (b) of the Act.
In view of the fact that we find appropriate a unit comprising all
of the hourly paid employees at the Employer's Houston branch, in-
cluding the truckdrivers, and are directing an election among the em-
ployees in that unit, we shall also order that the Decision and Direction
of Election issued by the Board on December 8, 1954, directing an
election in the unit limited to the truckdrivers, be rescinded.
Order
IT IS HEREBY ORDERED that the certification issued on July 18, 1950,
of Inside Glass Workers, Local Union No. 642, Brotherhood of
Painters, Decorators and Paperhangers of America, AFL, as the ex-
clusive bargaining representative of all hourly paid employees at the
Employer's branch warehouse at Houston, Texas, including auto
glaziers and leadermen, but excluding glaziers, truckdrivers, truck-
driver helpers, truckdriver and glazier helpers, office and clerical em-
ployees, and supervisors as defined in the Act, be, and the same hereby
is, revoked.
IT Is FURTHER ORDERED that the Decision and Direction of Election
issued by the Board on December 8, 1954, in the above entitled case,
directing an election in a unit of all truckdrivers at the Employer's
retail glass branch warehouse at Houston, Texas, be, and the same
hereby is, rescinded.
[Text of Second Direction of Election omitted from publication.]
MEMBER RODGERS took no part in the consideration of the above
Supplemental Decision, Order, and Second Direction of Election.
CHARLESTON TRANSIT COMPANY and AMALGAMATED ASSOCIATION OF
STREET, ELECTRIC RAILWAY AND MOTOR COACH EMPLOYEES OF AMER-
ICA, AFL. Case No. 9-CA-6923. March 30,1955
Decision and Order
On November 20,1953, Trial Examiner Sidney S. Asher, Jr., issued
his Intermediate Report, a copy of which is attached hereto, finding
that the Respondent is not engaged in commerce or in activities affect-
111 NLRB No. 197.
CHARLESTON TRANSIT COMPANY 1215
ing commerce within the meaning of the Act, and recommending that
the complaint in this matter be dismissed. Thereafter, the General
Counsel, the Respondent, and the Charging Party filed exceptions to
the Intermediate Report and supporting briefs.'
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act the Board has delegated its powers in connection with
this case to a three-member panel [Chairman Farmer and Members
Murdock and Rodgers].
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 Intermedi-
ate Report, the exceptions and briefs, and the entire record in this
case and hereby adopts the findings and conclusions contained in the
Intermediate Report, with the following additions :
The Respondent, a West Virginia corporation, is engaged in the
operation of passenger buses in and around the city of Charleston,
West Virginia. The Respondent operates its lines entirely within the
State of West Virginia. It connects with 1 interstate carrier and with
1 subsidiary of an interstate railroad, but it does not sell tickets for
passage on any other bus line nor does it permit other bus companies
to sell its tickets. It does not share facilities with other lines nor is
there interchange of passes or tickets between it and any other bus or
rail transportation company. In 1952, it received gross annual
revenue amounting to $1,779,885.
On the basis of the foregoing facts, we find that the Respondent
operates a local public transit system. In the Greenwich Gas case 2
the Board stated that in future cases the Board will assert jurisdic-
tion over local public utility and transit systems affecting commerce
whose gross value of business is $3,000,000 or more per annum. As
the Respondent's operations do not achieve this standard we find that
it will not effectuate the policies of the Act to assert jurisdiction herein.
We shall therefore dismiss the complaint in its entirety.
[The Board dismissed the complaint.]
MEMBER MuRDOCK, dissenting :
In our dissenting opinion in Greenwich Gas Company and Fuels,
Incorporated, 110 NLRB 564, Member Peterson and I made clear the
absence of any valid basis for the majority's newly adopted $3,000,000
yearly receipts test for the assertion of jurisdiction over public utilities
and set forth the compelling reasons for a broad assertion of juris-
diction in that field subject only to the rule of de minimis.3 The
1 The Charging Party's request for oral argument is hereby denied, as the record and
briefs , in our opinion , adequately present the issues and the positions of the parties.
The Greenwich Gas Company and Fuels, Incorporated, 110 NLRB 564.
3 See also our separate opinions in Breeding Transfer Company, 110 NLRB 493.
1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discussion in that case , however, was primarily confined to utilities
other than public transit systems such as operated herein by the Re-
spondent . The special place and importance of such transit systems
in the industrial and economic scene and the effect of the majority's
new standard thereon is deserving of separate comment.
The majority , of course , clearly errs in accepting without comment
the finding of the Trial Examiner that the Respondent is not engaged
in commerce within the meaning of the Act. As the Trial Examiner
himself admits, the Board and the courts have consistently found the
reverse to be true and this Respondent 's purchases from outside the
state as well as its service to industrial firms clearly affect commerce
as defined in the Act. The finding no doubt intended to be made is
that, while the Respondent is engaged in commerce , my colleagues do
not consider that the "policies of the Act" would be effectuated by the
assertion of jurisdiction . To this conclusion I must take vigorous
exception.
Public transit firms , like other enterprises in the group known as
"public utilities," have a particularly vital role in the economy in
which they operate. In the instant case , for example , the Respondent
provides an essential service to an area which has a population of
about 125 ,000 persons , a large number of industrial and commercial
firms , and a ranking as the second or third largest chemical producing
region in the United States . These industrial firms , in many instances,
are intimately connected with the national defense effort . While the
survey cited by the Trial Examiner would indicate , although there are
serious questions as to its accuracy , that the majority of the employees
at these industrial plants use other means of transportation to and
from their work, the same survey shows that, in some instances, as
high as 26 percent of the employees rely upon Respondent's service.
But such a survey is hardly alone determinative of the effect a cessation
of Respondent 's service would have upon commerce . Transit opera-
tions within a metropolitan area affect more than factory attendance.
When those operations are halted , as may occur during a labor dispute,
it follows, I believe, that the entire commercial , financial, and indus-
trial life of the community is affected with direct and indirect con-
sequences to commerce as defined in the Act.
But the essential role of public transit lines needs little additional
exposition here. It has been repeatedly explored and proved in both
text and actual experience . It has invariably led to public regulation
of such services as constituting public utilities of vital importance. I
therefore think it particularly dangerous and ill advised to deprive the
great majority of these transit operations and the employees engaged
therein of the protection and to remove them from the restraints of
the Act. For , as has been made clear elsewhere , there is serious ques-
tion as to the authority of any State and local regulatory body to as-
CHARLESTON TRANSIT COMPANY 1217
sume jurisdiction over these enterprises 4 The Supreme Court, in fact,
has specifically invalidated a State statute under which a State agency
was seeking to exercise such control over a public transit line and did
so on the ground that Congress preempted the field of labor relations
among such utilities.'
Because, then, the $3,000,000 standard adopted by the majority can-
not be justified in fact or law and because the result of such a standard
will be inevitably to expose the free flow of commerce to obstructions
occurring as a result of labor disputes, I must dissent both from the
'establishment of that standard and from the dismissal of the com-
plaint herein because the gross revenues of the Employer are only
$1,779,885.
4 See my dissenting opinions in Breeding Transfer Company and Greenwich Gas Com-
pany, supra. It should also be noted that recent opinions by several State courts have
indicated the absence of such State authority in specific cases. See New York State Labor'
Relations Board v. Wags Transportation System, Inc., 35 LRRM 2058.
6 Amalgamated Association of Street Electric Railway d Motor Coach Employees of
America, Division 998, at at. v. Wisconsin Employment Relations Hoard, 340 U. S. 383.
Intermediate Report
This proceeding involves allegations that Charleston Transit Company, Charles-
ton, West Virginia, herein called the Respondent, interfered with, restrained, and
coerced its employees in certain specified respects since about July 15, 1952, in viola-
tion of Section 8 (a) (1) of the National Labor Relations Act, as amended (61
Stat. 136), herein called the Act. After the issuance of a complaint by the General
Counsel,' the Respondent filed an answer denying the Board's jurisdiction and deny-
ing the commission of any unfair labor practices. The Respondent also filed a mo-
tion to dismiss the complaint on the ground that its operations are wholly intrastate,
and a motion for a more particular statement. Trial Examiner Eugene E. Dixon
denied the motion to dismiss and granted the motion for a more particular statement
in part. Thereafter, Trial Examiner Henry Sahm denied the Respondent's second
motion for a more particular statement. A hearing was held before the duly desig-
nated Trial Examiner from September 14 to 17, 1953, inclusive, at Charleston, West
Virginia. All parties were represented and participated fully in the hearing.2 The
Respondent and the General Counsel filed briefs, which have been duly considered.
After the close of the hearing, an order was issued correcting the transcript in certain
respects .3
Upon the entire record in this case, including a stipulation of the parties regarding
the Respondent's operations, and from my observation of the witnesses, I make the
following:
FINDINGS OF FACT
1. The Respondent is a West Virginia corporation, with its principal office in
Charleston, West Virginia. It is engaged in the operation of passenger buses in and
around the city of Charleston, West Virginia, as a common carrier, by virtue of a
number of certificates of convenience and necessity issued by the Public Service
Commission of West Virginia, and a franchise from the city of Charleston. It is
entitled to pick up and discharge passengers anywhere along its routes without
restriction.
2. The city of Charleston had a population of 73,501 in 1950. In the same year,
the population of Kanawha County, in which Charleston is located, was 239,629.4
1 The designation General Counsel is intended to include the General Counsel of the
National Labor Relations Board and his representatives at the hearing.
a The Charging Party is Amalgamated Association of Street, Electric Railway and
Motor Coach Employees of America, AFL.
'During the hearing, several exhibits offered by the Respondent were rejected, includ-
ing Respondent's Exhibits Nos. 4-B, 17, and 19. However, the reporter inadvertently
stamped these three exhibits "Received." In conformity with the rulings made at the
hearing, the stampings on these three exhibits are corrected to read "Rejected."
41950 Census of Population, Vol. 1, Number of Inhabitants, pages 48-7, 48-10, 'and
48-12.
1218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent serves by its bus lines a total population of about 125,000 people.
Charleston and the area around it constitute the second or third largest chemical
producing region in the United States. The chemical plants in the Charleston area
are all directly or indirectly engaged in defense work.
3. The Respondent's franchise from the city of Charleston is not exclusive. There
are six other bus lines privileged to use the streets of Charleston, including 1 interstate
carrier and 1 subsidiary of an interstate railroad. In addition, there are three other
small bus lines which do not come into Charleston, but cover the same general ter-
ritory as the Respondent outside Charleston. Under existing regulations, these 9 bus
lines-with 1 exception-may not both pick up and discharge the same passenger
along routes covered by the Respondent. The exception is in favor of the Atlantic
Greyhound Corporation between the towns of Dunbar and Nitro. This exception
aside, the Respondent is free of competition from any other bus line. The Respond-
ent does not sell tickets for passage on any other bus line, nor permit other bus
companies to sell its tickets, nor share its facilities with any other line. There is no
system of interchange of passes or tickets between the Respondent's lines and those of
any other bus company. Other than buses of the Respondent, there were 259 buses
licensed in Kanawha County on June 1, 1953.
4. The Respondent's operations for the years 1951 and 1952 and the first 5 months
of 1953, including the maximum and minimum number of buses, are shown on the
following table:
1951 1952 First 5 months of1953
Buses owned________________ From 94 to 102____________ From 102 to 109___________ From 99 to 102.
Buses licensed______________ From 93 to 95_____________ From 90 to 94_____________ From 90 to 91.
Passenger revenues -------__ $1,693,454__________________ $1,779,885__________________ $697,873
Miles operated______________ 4,230,287___________________ 4,104,476___________________ 1,604,998.
Passengers carried --------__ 17,516,912__________________ 16,013,792_________________ 6,367,631.
The Respondent operates 16 routes, the 1-way mileage of which vary from slightly
under 2 miles to almost 32 miles. All routes begin and end within the State of
West Virginia, and the Respondent has never sent any vehicle beyond the State.
During 1952, the Respondent received $5,091 from advertisements carried in its
buses, which was forwarded from its out-of-State agency. Of this amount, $1,055
represented payments received by the agency from national advertisers, the re-
mainder being derived from local advertisers. During the first 7 months of 1953,
the Respondent's receipts from advertising totaled $2,023. As of September 1, 1953,
the Respondent employed 189 employees, of whom 117 were busdrivers and 23 were
mechanics.
The Respondent's purchases during 1951, 1952, and parts of 1953 are shown on
the following table: 5
1951 1952 1953 (partial)
Buses purchased from out-of-State____________________________ $198, 770 $140,535 --------------
Parts purchased from out-of-State_____________________________ 48, 590 23, 873 $11, 555
Tire service, out-of-State______________________________________ -------------- 35, 535 17,042
Other out-of-State purchases (insurance, etc.) ----------------- 121, 833 --------------
Totals, out-of-State purchases___________________________ 247, 360 321, 776 --------------
Gasoline purchased in State___________________________________ 14,067 7, 928 2,948
Fuel purchased in State_______________________________________ 84, 410 87, 348 36, 471
Lubricants purchased in State________________________________ 5, 783 4, 310 1, 713
Totals------------------------------------------------- 351,620 421, 362
5 A stipulation of the parties offered in evidence contains figures with respect to the
Respondent's purchases of gasoline, fuel, and lubricants within the State. The Respondent
objected to the admission of this part of the stipulation on the ground that the figures
were immaterial. Ruling on the objection was reserved. The objection is now overruled
and the disputed paragiaphs received in evidence.
CHARLESTON TRANSIT COMPANY 1219
5. The Respondent operates regular scheduled service during certain hours to
bus stops located within 6 blocks of 28 industrial plants, operated by 25 different
firms, and employing a total of approximately 20,000 workers. Eighteen of these
companies each annually ship products valued at $100,000 or more outside the
State. After the issuance of the complaint herein , the Respondent conducted a sur-
vey designed to ascertain the transportation habits of the employees in these plants.
This survey was conducted in the summer during dry weather and resulted in a
sampling of slightly over 70 percent-considered a more than ample sampling for
surveys of this types Its results indicated that 91 .4 percent of the employees sur-
veyed had come to work that day by means other than bus, and that the remaining
8.6 percent of the employees had come to work that day on either the Respondent's
buses or the buses of some other transit line. Without necessarily adopting these
percentage figures, I conclude from this survey that a vast majority of the employees
of these 28 plants customarily come to work by methods of transportation other
than bus.
In addition , the Respondent 's buses regularly pass near a Naval ordnance plant
which is a maintenance installation , and the Second Army Headquarters for the
West Virginia Military District . They also run within 2 miles of a total of 13 coal
mines outside Charleston , operated by 5 coal mining firms . These companies in 1952
employed a total of 2,640 men and produced a total of 4,368,064 tons of coal. It
appears, however , that the Respondent 's buses customarily carry very few miners
to and from work. The Respondent 's lines do not operate near any oil or gas wells.
6. The Respondent has a bus stop not far from the Greyhound bus terminal,
and two bus stops near the entrance to the Chesapeake and Ohio Railway depot.
This railway runs 4 westbound an 5 eastbound trains through Charleston daily,
but of these 1 eastbound train runs entirely within the State , and 1 eastbound and
I westbound train arrive in Charleston during the early morning hours when the
Respondent 's buses are not regularly scheduled to operate. A check made by the
Respondent after the issuance of the complaint herein indicates that few passengers
boarding or getting off Chesapeake and Ohio trains use the Respondent 's buses.
The Respondent 's lines do not run within a reasonable distance of the Charleston
airport , nor do they serve any river barges or transportation agencies . The Re-
spondent does not haul newspapers , mail, or other freight.
Upon the basis of the foregoing findings of fact, and upon the entire record in this
case , I make the following:
CONCLUSION OF LAW
The Board exercised jurisdiction over the Respondent 's operations in 1944, at a
time when these operations were not as extensive as they now are.7 During the next
6 years, the Board continued to take jurisdiction over numerous local transit systems,
some of which were more extensive and some of which were less extensive than that
of the Respondent here.8 In two instances , the Board 's exercise of jurisdiction
over such local transit systems was approved by a court of appeals .9 Then , in 1950,
the Board issued a series of decisions setting forth the criteria which would guide it
in taking jurisdiction in the future . Among these was the Local Transit case, in
which jurisdiction was taken over a bus line hauling passengers between Knoxville,
O The Respondent surveyed 27 plants with a total employment of 19,562. In addition,
the 1 plant not surveyed had at least 409 employees , thus making a total of at least 19,971
in all 28 plants . Answers were obtained from 14 ,042 employees by the Respondent. The
28th plant conducted its own survey of 409 employees , but the size of this sampling and
the conditions under which the survey was made were not shown . I therefore do not con-
sider that an adequate survey was made in the 28th plant.
7 Charleston Transit Company, 57 NLRB 1164.
e Mendorson Bus Lines , 58 NLRB 820 ; Chicago Surface Lines, 58 NLRB 1140 ; Spokane
United Railways , 60 NLRB 14 ; The Louisville Railway Company, 69 NLRB 691 ; Pitts-
burgh Railways Company, 70 NLRB 670 ; Tampa Transit Lines, Inc , 71 NLRB 742; Wich-
ita Transportation Corporation, 73 NLRB 1070 ; Safety Motor Transit Corporation, 78
NLRB 831; Amarillo Bus Company, 78 NLRB 1103 ; Philadelphia Suburban Transporta-
tion Company (Red Arrow Lines ), 79 NLRB 448 ; Lynchburg Transit Company , 79 NLRB
546; El Paso-Ysleta Bus Company, Inc , 79 NLRB 1068 ; City Transportation Company
80 NLRB 270 ; Gate City Transit Lines, Inc., 81 NLRB 79; Harrisburg Railways Company,
84 NLRB 678 ; and The Louisville Railway Company, 90 NLRB 678 . Contra : C7oicago
Motor Coach Company, 62 NLRB 890.
ON L it. B . v. The Baltimore Transit Company , et al, 140 F 2d 51 (C. A. 4 ), cert. de-
nied 321 U . S. 795; and N . L. R. B. v. El Paso - Ysleta Bus Line, Inc., 190 F. 2d
261 (C A. 5).
344056-55-vol. 111-78
1220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tennessee, and other points within that State. The employer there had 22 employees,
used 15 buses, and had a gross annual revenue exceeding $100,000. His direct
interstate imports totalled $37,500 in 1 year. In asserting jurisdiction, the Board
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.lo
The principle enunciated in the Local Transit case was followed in several later
cases involving local transit systems." This was the posture of the law at the time
of the hearing in the instant matter. Under this test, the present action might be
entertained. However, since the close of the hearing in the instant case, the Board
refused to take jurisdiction over a public bus transportation system in San lose City
Lines, Inc., 106 NLRB 1167. The Board's decision in that case discloses no under-
lying facts pertaining to the jurisdictional question. The Board there stated:
The Employer operates a public bus transportation system in San Jose, Califor-
nia, and the immediate surrounding area. However, the record fails to estab-
lish to our satisfaction that these operations, as such, affect commerce within
the meaning of the Act. Furthermore, although there is some evidence that
the Employer is a subsidiary of an enterprise incorporated and operating in
another State, we do not believe that the record establishes that the Employer
is part of a multistate transit system. Upon the entire record herein, we find
that the Employer is not engaged in commerce, or in activities affecting com-
merce, within the meaning of the Act.
The San lose case, being the most recent pronouncement of the Board on the sub-
ject, is controlling here. Accordingly, I find that the Respondent herein is not en-
gaged in commerce, or in activities affecting commerce, within the meaning of the
Act.
One other point remains to be disposed of. The General Counsel urges that the
Respondent's purchases from out of State "approaches the $500,000 figure required
for the assertion of jurisdiction on this basis alone ." But, as the tables set forth above
clearly indicate, in no year has the total of out-of-State and in-State purchases reached
the $500,000 minimum set up by the Board for direct out-of-State purchases.12
Thus, jurisdiction cannot be bottomed upon the Respondent's purchases.13
[Recommendations omitted from publication.]
10 Local Transit Lines, 91 NLRB 623, 624.
11 Gastonaa Transit Company, 91 NLRB 894; Louisville Transit Co., 94 NLRB 20;
Columbus-Celina Coach Lines, et at., 97 NLRB 777 ; and Texas Electric Bus Lines,
100 NLRB 67.
11 1 deem it unnecessary to decide whether, as the General Counsel contends, the in-State
purchase of gasoline, fuel, and lubricants should be considered as indirect out-of-State
purchases
18 Federal Dairy Co , Inc., 91 NLRB 638; and Florida Mattress Factory, Inc., of Tampa
91 NLRB 772.
HAWAII TEAMSTERS AND ALLIED WORKERS UNION, LOCAL 996 and
OAKLEY A. DAHLBERG AND RUTH N. DAHLBERG, CO-PARTNERS D/B'/A
WAIALUA DAIRY . Case No. 37-CC-3. March 30, 1955
Decision and Order
On December 22, 1954, Trial Examiner David F. Doyle issued his
Intermediate Report in the above-entitled proceeding finding that the
Respondent had engaged in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take certain affirmative
action, as set forth in the copy of the Intermediate Report attached
111 NLRB No. 196.