Checker Taxi Co.

National Labor Relations Board - Board Decisions

Jan 21, 1954

107 N.L.R.B. 921 (N.L.R.B. 1954)

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 concernsl 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 which amount 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 jurisc::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 --the public transitlines , 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 BenBenderly , 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.
'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.
922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Coven, hearing officer.' The hearing officer's rulings made
at the hearing are free from prejudicial error and are hereby
affirmed.
Upon the entire record in this case, the Board finds that
it will not effectuate the policies of the Act to assert juris-
diction in this case for the different reasons set forth below.
The commerce data with respect to the Employer's taxicab
business is, except as noted below, the same as the data
appearing in Checker Taxi Company, 107 NLRB 266, where
the Board declined to assert jurisdiction over the Employer.
There the Board found that the Employer operates about
one-sixth of the taxicabs in Boston , Massachusetts,
that it has the exclusive use of cab ramps at 3 railroad
stations in the city, and that it derives about $484,000 or
19 percent of its approximately $2,500,000 annual revenue
from transporting passengers to and from railroad termi-
nals.2
The additional data refers to Airways Transportation Com-
pany, which derives about $100,000 annually from transporting
passengers to and from Logan Airport near Boston, and
which the Petitioner alleges constitutes together with the
Employer a single employer for purposes of determining
jurisdiction.
However, assuming, without deciding, that the 2 enter-
prises constitute a single employer, Chairman Farmer and
Member Rodgers believe that the relation of the 2 enterprises
to interstate commerce is too inconsequential and remote to
warrant assertion of the Board's jurisdiction. Consistent
with their position in the previous Checker Taxi case, supra,
they would therefore not assert jurisdiction in this case.
Member Peterson finds that assuming, without deciding,
that the total revenues derived from the transportation of
passengers to and from terminals of interstate carriers
amounted to $584,000 or about 23 percent of the total revenue,
it nonetheless would not constitute a substantial portion of
the Employer's total revenue. For that reason he also would
not take jurisdiction in this case.
Accordingly, we shall dismiss the petition.
[The Board dismissed the petition.]
'Local 496, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, AFL, intervened on the basis of its current contract.
2Chairman Farmer and Member Rodgers found that taxicab operations are essentially
local in character and that the Employer's relation to interstate commerce is too inconse-
quential and remote to warrant assertion of the Board's jurisdiction. Member Peterson
declined to assert jurisdiction because he deemed thetotal revenue from carrying passengers
to and from terminals of instrumentalities of commerce to be insubstantial. Member Murdock,
CHECKER TAXI COMPANY 923
Member Murdock , dissenting:
I cannot agree with the conclusion of my colleagues that it
would not effectuate the policies of the Act to assert jurisdic-
tion over this Employer in this proceeding.
Although I recently joined in dismissing a complaint against
this Employer , ' I did so only on the limited ground that
equity and fair play dictated not entertaining an unfair labor
practice complaint based upon a contract made at a time when
the Board was refusing to take jurisdiction of taxicab com-
panies. No such considerations are now present; we are
asked only to entertain a petition for certification of a bar-
gaining representative , and the only issue is whether this
Employer's operations bring it within the Board ' s juris-
dictional policy.
In Cambridge Taxi Company ,4 the Board carefully re-
examined its jurisd ictional pol icy with respect to taxicab
companies and concluded that:
it will not effectuate the policies of the Act to assert
jurisdiction over taxicab companies , except in those
instances where both of the following factors are present:
(1) The employer is either the sole taxicab company
operating in the area served by its cabs, which service
instrumentalities of commerce , or is the holder of a
contract , license or franchise from some instrumentality
of commerce , granting to the employer the privilege or
right to serve , either exclusively or concurrently with
others , a depot or terminal of such instrumentality;
and (2 ) the employer derives a substantial portion of its
total revenue directly from carrying passengers to and
from terminals or depots of these instrumentalities
of commerce.
The Employer here clearly falls within this policy which has
not yet been overruled by a majority of the members of
this Board. Accordingly , I would assert jurisdiction . I cannot
agree either with the action of 2 of my colleagues in ignoring
the Cambridge Taxi policy or with the determination of the
third that 584,000 or about 23 percent of total revenues
derived from hauling passengers to and from terminals of
interstate carriers is not a " substantial portion" of its total
revenues within the meaning of the Cambridge Taxi test
above stated.
while disagreeing with the bases for not asserting relied upon by his colleagues , concurred
in the decision to dismiss on the ground that the contract involved was negotiated at a time
when the Board was refusing to assert jurisdiction over taxicab companies and that it would
therefore be neither equitable nor fair to entertain a complaint based upon that contract.
3 Checker Taxi Company , 107 NLRB 266.
4101 NLRB 1328.