Margate Bridge Co.

National Labor Relations Board - Board Decisions

Feb 27, 1980

247 N.L.R.B. 1437 (N.L.R.B. 1980)

MARGATE BRIDGE COMPANY
Margate Bridge Company' and International Broth-
erhood of Painters and Allied Trades, Local 1447,
AFL-CIO, Petitioner. Case 4-RC-13743
February 27, 1980
DECISION AND DIRECTION OF ELECTION
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND TRUESDALE
Upon a petition duly filed on June 18, 1979, under
Section 9(c) of the National Labor Relations Act, as
amended, a hearing was held on July 9, 1979, before
Hearing Officer Michael P. Horne. Pursuant to
Section 102.67 of the National Labor Relations Board
Rules and Regulations, Series 8, as amended, the
above-entitled matter was transferred by the Regional
Director for Region 4 to the Board for consideration.
Thereafter, the Employer filed a brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the Hearing Officer's
rulings made at the hearing and concludes that they
are free from prejudicial error. They are hereby
affirmed.
Upon the entire record in this case, the Board finds:
1. The Employer owns and operates a toll bridge in
New Jersey, which connects the mainland community
of Egg Harbor Township with the seashore town of
Margate City, located on Absecon Island. The Mar-
gate Bridge is actually four separate bridges, which
form a causeway between the mainland and Absecon
Island. The Employer owns each of the bridges in fee
simple, and owns the road and the parcels of land on
which the bridges touch down from the centerline to
points 50 feet on either side thereof.
The Employer's bridge, which connects two por-
tions of County Route 563, is one of seven bridges
joining the mainland to Absecon Island. The Employ-
er's bridge is the only one of these seven bridges on
which a toll is charged. The Employer imposes on
vehicles using its bridge a 40,000-pound weight limit
and a 13-foot, 6-inch height ceiling.
During 1978, each driver of the more than 3.3
million vehicles using the employer's bridge paid an
average toll of 28.4 cents, resulting in approximately
$1 million in gross revenue for the Employer.
The name of the Employer appears as amended at the hearing.
As the Board stated in International Longshoremen & Warehousemen's
Union. and Local No. 13. International Longshoremen & Warehousemen s
Union (Catalina Island. Sightseeing Lines), 124 NLRB 813, 815 (1959):
"When, as here, legal jurisdiction has been established and some relevant
247 NLRB No. 205
The Petitioner seeks to represent a unit of all of the
Employer's toll collectors, and the Employer has
stipulated to the appropriateness of that unit.
The Employer, however, contends that the Board
should not assert jurisdiction over it because it is a
nonretail enterprise which, during the past year, made
purchases from outside New Jersey valued at only
$34,500, and because none of the other categories of
enterprises over which the Board has asserted jurisdic-
tion is applicable to it.
The Employer's bridge apparently is I of only 10
privately owned toll bridges in the United States, and
the issue presented by this case is one of first
impression for the Board. The Employer's operation
arguably is classified as either a retail enterprise,
transit system, public utility, or an essential link in
interstate commerce. Because the Employer meets the
Board's standard for assertion of jurisdiction regard-
less of which of these tests is used, we find it
unnecessary to decide which test is controlling.'
The Employer contends that it is not a retail
enterprise, but rather is analogous to businesses-such
as insurance and electrical power companies-which
lack the concept of retail selling or servicing. The
Employer argues that, in the absence of Board
precedent regarding the classification of private toll
bridges for jurisdictional purposes, it is appropriate
that the Board rely on rulings of the Department of
Labor construing the term "retail" under the Fair
Labor Standards Act. The Labor Department has
determined that, for purposes of the wage and hour
laws, toll-bridge companies are not considered retail
establishments.
Although valuable as guidance, rulings of the Labor
Department's Wage and Hour Division as to employer
classifications are not controlling on the Board in view
of the different purposes of the Fair Labor Standards
Act and the National Labor Relations Act.' More-
over, application of the Fair Labor Standards Act is
limited to employers "engaged in commerce or in the
production of goods for commerce," while the Board's
jurisdiction extends to enterprises whose operations
"affect commerce."
The Labor Department does not explain in its
regulations why it defines toll-bridge companies as
nonretail, but merely includes them on a list of about
130 types of establishments which it deems as not
having a retail concept. The Labor Department,
however, states in the same set of regulations that a
retail establishment is one which sells goods or
services to the general public, and which serves the
standard for the discretionary assertion of jurisdiction has been met, it is
immaterial that jurisdiction might be asserted under one of several different
standards."
' Earl McMillian Company. 81 NLRB 639 (1949); The Austin Company, 77
NLRB 938 (1948).
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
everyday needs of the community in which it is
located. This description accurately may be applied to
the Employer, inasmuch as it is engaged in selling
rights of passage over its bridge to individuals for their
personal use.
The Board's own criteria for distinguishing retail
from wholesale operations also supports a finding that
the Employer is covered by the retail standard. These
criteria, set out in Roland Electrical Company v.
Walling, 326 U.S. 657 (1946), and adopted by the
Board in J. S. L,atta & Son, 114 NLRB 1248 (1955),
define a retail sale as one to a purchaser who desires
"to satisfy his own personal wants or those of his
family or friends." We have little doubt that those who
purchase the right to pass over the Employer's bridge
do so in order to satisfy their "own personal wants."
The record indicates that the overwhelming number of
vehicles crossing the Employer's bridge are private
cars. This is partly the result of the Employer's weight
and height limitations, which have the effect of
precluding tractor-trailer trucks and other large com-
mercial vehicles from using the bridge, and partly the
result of the nature of the Margate community.
The retail character of the Employer's operation
also is demonstrated by its sale of about 70,000
commuter tickets annually to patrons of the bridge.
The Employer's operation is designed for the ultimate
consumer, and therefore may be viewed as being
primarily retail in nature. As the Employer stipulated
that it received more than $500,000 in gross revenue in
the past year, it thus satisfies the Board's monetary
jurisdictional test for retail enterprises.4
The Employer also properly may be considered as
meeting the $250,000 gross, annual volume-of-busi-
ness standard applicable to both transit systems and
public utilities.
Under the transit system standard, the Board has
asserted jurisdiction over a local bus system that
transports passengers in and around Charleston, West
Virginia (Charleston Transit Company, 123 NLRB
1296 (1959)), as well as an intrastate airline company
that operates a passenger shuttle service between four
California cities (Air California, 170 NLRB 18
(1968)).
Although the Employer's bridge is stationary, it
may readily be regarded as analogous to the bus
system and airline company since it enables persons
and freight to move across the water lying between the
mainland and Absecon Island.
The Employer also conforms to the established
definition of a public utility. The Margate Bridge
functions as a state-granted monopoly that regularly
supplies the public with a vital service which affects
the entire community. The bridge connects two parts
' Member Jenkins does not rely on the discussion or the "retail" standard in
this case.
of a public road, and the Employer's operation is
regulated by the section of the New Jersey statutes
governing public utilities (N.J. Stat. Ann. Sec. 48:5-1
to 48:5-28).
That section of the New Jersey code sets forth
provisions regarding the manner in which private toll-
bridge companies must be formed, the required
contents of their certificates of incorporation, and the
restrictions on their freedom to incur debts and
mortgage their property. The regulating statute en-
dows toll-bridge companies with the power to take
necessary land-subject to certain limitations-and
gives them the right to collect tolls. The State,
however, mandates that they charge a reasonable toll,
and New Jersey retains the right to take away a toll-
bridge company's charter for nonpayment of taxes or
failure to maintain its bridge in repair.
The Petitioner's principal argument is that jurisdic-
tion should be asserted because the Employer's bridge
is an essential link in the transportation of passengers
and commodities in interstate commerce. The Board
held in H P 0 Service, Inc., 122 NLRB 394 (1958),
that it would assert jurisdiction over all enterprises
serving as essential links in interstate commerce which
derive at least $50,000 gross revenue per annum from
such interstate operations.
The Employer contends that a private toll bridge
located on a county road and providing merely a
right-of-way does not fit within the generic concept of
an instrumentality, link, or channel of interstate
commerce as that category has been defined by the
Board. According to the Employer, enterprises classi-
fied as essential links by the Board either have been
direct providers of transportation, such as buses,
tugboats, and taxicab "starters," or have been employ-
ers that perform some direct service for persons or
goods moving in interstate commerce, such as freight
stations, warehouses, and shipping terminals.
The Employer maintains that it differs from either
of those categories because it is nothing more than a
stationary part of a county road that neither moves
passengers or commodities, nor provides essential
interim storage or handling services.
We find no merit in the Employer's contention,
particularly in light of the indispensable role that its
bridge fulfills in the life of the areas which it connects.
It is evident from the 3.3 million trips made over the
bridge last year that it is a key access route for the
many out-of-state residents who utilize the Margate
resort area, as well as the most convenient way for
Margate residents to travel by car to the neighboring
States of Pennsylvania and New York. The bridge is
located approximately 60 miles from the Pennsylvania
state line, and just a few miles more than that from the
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MARGATE BRIDGE COMPANY
Delaware state line. In addition, the road the bridge is
on intersects nearby with a major interstate highway,
which in turn leads to several other interstate routes.
The employer's own advertising emphasizes its conve-
nience to such cities as Philadelphia, New York, and
Baltimore, and it is reasonable to deduce that a
significant amount of the bridge's traffic is engaged in
journeys to or from out-of-state locations.
Our inquiry, however, does not end with the
determination that the Employer functions as an
essential link in interstate commerce. The Board's
discretionary standards provide that jurisdiction will
be asserted only over those essential links which derive
at least $50,000 in annual gross revenue from their
interstate operations. It is very difficult to ascertain
the exact amount of interstate commerce handled by
the Employer's bridge because the Employer does not
maintain any records of the number of cars versus
trucks, or light trucks versus heavy trucks, or in-state
versus out-of-state vehicles using the bridge. Neither
have any surveys been undertaken to measure the
degree of interstate traffic handled by the Employer.
Thus, we are left with the Employer's "educated
guess" that it derived only about $32,000 in tolls from
vehicles involved in interstate trips last year. The
Employer's estimate is based on the assumption that
almost all of the interstate journeys over the bridge
occur during the summer season-which the Employ-
er identifies as running from June 4 through Septem-
ber 2-when persons travel to Absecon Island to use
seashore amenities. During this 13-week period, an
average of 87,083 vehicles per week pass over the
Employer's bridge, compared with an average of
57,836 vehicles per week during the other 39 weeks of
the year. This rise of 29,247 vehicles per week during
the summer season leads the Employer to the conclu-
sion that a total of 380,211 vehicles may be attributed
to the increase in summer traffic over the balance of
the year.
Multiplying this 380,211 figure by the average toll
of 28.4 cents, the Employer arrives at the amount of
extra revenue-$107,979-which it considers to be
derived from summer traffic, including both in-state
and out-of-state travel. Next, the Employer makes
what it calls an "educated guess" to conclude that
approximately 30 percent of the extra vehicles cross-
ing its bridge during the summer season are making
interstate journeys, and thus about $32,000 of its
revenue is attributable to interstate travel.
Even excluding the 380,211 additional vehicles
which the Employer gauges use its bridge during the
summer season, the evidence shows that more than
750,000 vehicles pass over the bridge during this 13-
week period. The Employer asks us to presume that
only a miniscule amount of this "regular" summer
traffic is involved in interstate travel. Nonetheless, the
record also indicates that approximately 2.25 million
customers use the bridge during the 39 remaining
weeks of the year.
To find that the Employer does not derive at least
$50,000 from its essential-link services, the Board
would have to assume that interstate trips constitute
less than 64,000-or about 2 percent-of the 3 million
trips over the bridge which are not ascribed to the
summer season increase in traffic.
In other words, the Board would be required to find
that, aside from the extra vehicles lured to Margate
City during the summer, there is virtually no interstate
traffic over the bridge, or at least not enough to result
in $18,000 in tolls. We do not believe that such a
finding is warranted in view of the nature of the island
community which the Employer's bridge links to the
mainland and the proximity of that bridge to interstate
highways and neighboring States.
The Board was confronted with a similar problem
in Airlines Parking. Inc., 196 NLRB 1018 (1972), in
which jurisdiction was asserted over an employer that
operates a satellite parking facility at Detroit Metro-
politan Airport. Although there was no direct evi-
dence that those who park their cars in the employer's
lot engage in air travel, the Board found that it was an
obvious deduction from the fact that the employer's
shuttle buses carry luggage as well as passengers
between the parking lot and the airport terminal.
Conceding that there was no way of knowing the type
of travel engaged in by the parking lot's customers, the
Board nevertheless held that the nature of the employ-
er's operations was such to allow the Board to deem it
to be an essential link in interstate commerce.
In addition, the Board concluded in Airlines Park-
ing that the inference was warranted that at least
$50,000 of the parking lot's gross revenue-represent-
ing only 15.4 percent of the total-was derived from
passengers engaged in interstate travel. We deem the
theory of that case to be applicable here and shall
draw the inference that was drawn there. Accordingly,
we find that $50,000 of the Employer's gross revenues
was earned from tolls charged to customers involved
in interstate travel.
In sum, whether the Employer herein is to be
classified as an essential link, transit system, public
utility, or more in the nature of a retail enterprise, we
can find no significant reason for declining jurisdic-
tion.
Accordingly, we find that the Employer is engaged
in commerce within the meaning of the Act, and it
will effectuate the purposes of the Act to assert
jurisdiction herein.
2. The labor organization involved claims to repre-
sent certain employees of the Employer.
3. A question affecting commerce exists concerning
the representation of certain employees of the Employ-
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
er within the meaning of Section 9(c)(1) and Section
2(6) and (7) of the Act.
4. In accordance with the stipulation of the parties,
we find that the following employees of the Employer
constitute a unit appropriate for the purposes of
collective bargaining:
All toll collectors, excluding office clericals,
professionals, guards and supervisors as defined
in the Act.
[Direction of Election and Excelsior footnote omit-
ted from publication.]
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