Elmsford Transportation Corp.

National Labor Relations Board - Board Decisions

Sep 13, 1974

213 N.L.R.B. 257 (N.L.R.B. 1974)

ELMSFORD TRANSPORTATION CORP. 257
Elmsford Transportation Corp. and Division 1181
Amalgamated Transit Union, AFL-CIO. Case
AO-157
September 13, 1974
ADVISORY OPINION
This is a petition filed on May 31, 1974, by Elms-
ford Transportation Corp., herein called the Employ-
er, for an Advisory Opinion, in conformity with
Sections 102.98 and 102.99 of the Board's Rules and
Regulations, Series 8, as amended, seeking to de-
termine whether the Board would assert jurisdiction
over the Employer's operations. Thereafter, on June
18, 1974, Division 1181 Amalgamated Transit Union,
AFL-CIO, herein called the Union, filed a statement
of position.
In pertinent part, the petition and the Union's state-
ment of position allege as follows:
(1) On April 4, 1974, the Union filed a petition with
the Board, Case 2-RC-16484, for a certification of
representative. Thereafter, on April 18, 1974, during
a conference in which all parties participated, the Em-
ployer questioned the Board's jurisdiction by assert-
ing that it was not involved in interstate operations,
and affirmatively alleging that it was essentially a lo-
cal New York schoolbus operation, making occasion-
al unrelated schoolbus trips, in the course of a month,
to Newark Airport, in New Jersey. The Regional Di-
rector recommended dismissal of the petition on the
ground that the Board lacked jurisdiction; the Union
withdrew the petition and filed a petition for certifica-
tion, Case SE-47817, with the New York State Labor
Relations Board, herein called the state board. On
May 14, 1974, a conference was held before the state
board, in which all parties participated. The Employer
did not question the jurisdiction of the state board. On
May 21, 1974, a strike commenced at the Employer's
premises and by order dated May 24, 1974, which
order resulted in the termination of the strike, the
state board ordered an election to be held on June 4,
1974. On May 28, 1974, the Employer, by its new
attorneys, filed a representation petition, Case 2-
RM-1714, with the Board, alleging that the Employer
is engaged in interstate commerce. On June 3, 1974,
the day preceding the state board scheduled election,
the Employer moved in Supreme Court, Westchester
County, New York, for a temporary restraining order
and order to show cause for a preliminary injunction
to stay the state board election to be held on June 4.
The court denied both the temporary restraining or-
der and the preliminary injunction, and the state
board election was held on June 4. The results of the
election, however, are inconclusive, since the chal-
lenged ballots are sufficient in number to affect the
results of the election.
(2) Upon the contents of the petition, it appears
that the Employer is engaged in the transportation
industry in Elmsford, New York, operating a taxicab
service, a trucking service, a charter service, and a
schoolbus operation and has a gross annual volume of
income of approximately $700,000, of which $100,000
is derived through its messenger and trucking services,
and an additional $40,000 is derived through its taxi
service. The petition reflects that in the course and
conduct of its trucking operations, the Employer's
deliveries are made principally for a New York com-
pany; that the trucking services performed involve
deliveries in New York and New Jersey; and that
shipment of such equipment outside New York State
is valued in excess of $50,000. The petition alleges that
equipment used in the trucking messenger service is
the same as that used in the schoolbus operation, and
that the only equipment not used in both operations
are the large schoolbuses. Additionally, it is alleged
that the employees function as both schoolbus drivers
and as drivers in the messenger service . The petition
sets forth that in the calendar year ending December
1973, the Employer purchased gasoline in the amount
of $44,000 from Gulf Oil; purchased parts necessary
for the maintenance of equipment in the amount of
$64,000; expended $1,500 for the purchase of oil; and
bought equipment in the sum of $166,000. In the 4-
month period of January through April 1974, the Em-
ployer made similar purchases amounting to $75,100.
(3) The state board has made no findings with re-
spect to the aforesaid commerce data.
(4) As noted above, a representation petition in-
volving this labor dispute is pending before the Board.
(5) Although served with a copy of the petition for
Advisory Opinion, no response as provided by the
Board's Rules and Regulations has been filed by the
state board.
On the basis of the above, the Board is of the opin-
ion that:
The Employer herein, having originally asserted
that it was not engaged in interstate commerce nor
subject to jurisdiction of the National Labor Rela-
tions Board, did not thereafter question the jurisdic-
tion of the state board until just before a
state-conducted election which was held on June 4,
1974. In these circumstances and in view of our policy
of according the same effect to a state-directed elec-
tion as we do to our own elections, we would not
entertain a representation petition involving the em-
ployees herein at this time.' We conclude, therefore,
1 In We Transport, Inc., 198 NLRB No. 144 (1972), the Board noted at fn.
6 that it was not inclined to encourage forum shopping by permitting parties
who have already initiated a proceeding before a state agency to subsequent-
Continued
258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that no useful purpose would be served by the is-
suance of an Advisory Opinion on the issue of com-
merce jurisdiction with respect to this Employer.2
Accordingly, it is hereby ordered that the petition
for Advisory Opinion be, and it hereby is, dismissed.
MEMBER KENNEDY, concurring:
The Board has consistently refused to assert juris-
diction over schoolbus enterprises . See S. L. Lines,
Inc., d/b/a Pacific-Scenic-Lines, 164 NLRB 1179
(1967); Community Enterprises, Inc., d/b/a Commu-
ly institute a like proceeding in the same matter before our Agency. The
circumstances here compel a similar conclusion.
2 Accordingly , we do not reach the substantive jurisdictional matters raised
herein . See Roman Catholic Archdiocese of Newark, 204 NLRB 159 (1973).
nity Charter Bus System, 164 NLRB '1186 (1967);
Brothers Coach Corp., 158 NLRB 931 (1966); Camp
Baumann Buses, Inc. and V. S. Buses, Inc., 142 NLRB
648 (1963); Rayburn Bus Service, Inc., 128 NLRB 430
(1960). We recently affirmed the administrative dis-
missal of a petition on jurisdictional grounds involv-
ing an employer whose busing operations were related
to the operation of an exempt state university. Trans-
portation Enterprises, Inc., Case 23-RC-3973 [not
published].
I would adhere to the longstanding precedent that
we should not assert jurisdiction over essentially local
enterprises engaged primarily in aid of the state in the
field of education. I agree that the petition herein
should be dismissed but do not rely upon the circum-
stance that another proceeding is pending before a
state agency.