Mid-West Pool Car Ass'n., Inc.

National Labor Relations Board - Board Decisions

Oct 27, 1955

114 N.L.R.B. 721 (N.L.R.B. 1955)

,MTD-WEST; FOOL CAR ASS"N., II C. - 721
Petitioner having been'-designated by a majority of the employees in
the bargaining unit, we shall certify it as bargaining representative in
that unit.
[The Board certified International Union of United Brewery, Flour,
Cereal , Soft Drink and Distillery' Workers of America, CIO, as the
designated .,collective-bargaining representative of, the employees of
Shoreline , Enterprises of America and Shoreline Packing Corporation
in the appropriate unit.]
Mid-West Pool- Car Assn ., Inc.' and International Brotherhood
-of-,-Teamsters, Chau'lfeurs, - Warehousemen and Helpers of
America, Local No. 17, AFL, Petitioner. Case No. 30 RCJ -1043.
October 27,1955
DECISION ' AND' ORDER
Upon a petition duly fled under Section 9 {c) of the National
Labor Relations Act, a hearing was held before ,Allison E. Nutt, hear-
ing 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 purposes of the Act to assert jurisdiction in this case for
the reasons stated below.
The Petitioner seeks a unit of dock employees and truckdrivers em-
ployed,by the Employer at, Denver, Colorado. The Employer con-
tends that the- Board should dismiss the petition, on, jurisdictional
grounds.
The Employer, a corporation, 'is a nonprofit organization' formed
for ,the purpose, of having merchandise loaded on freight cars for its
members, distributing it to them on arrival, in Denver, and effecting
savings for them by taking advantage of carload freight rates. The
members` of the organization include retail and wholesale establish-
ments and manufacturers located'in Denver. Any firm in Denver hav-
ing a satisfactory credit, rating can become a member by purchasing-
a, share of stock.
The Employer makes no out-of-State purchases itself, and at no time
has title to the merchandise it handles for its members. Goods pur-
chased by, the individual members are, delivered by the vendors to
11 S: Packing and, Shipping Company in New York City for consoli-
dation into carload lots, and-delivery to the railroad. The cars are
then sent- to the Employer in Denver, which is responsible for .the
freight charges, and is -notified by the- railroad when the cars will
arrive. Upon their arrival, the Employer unloads the cars -and deliv-
i The name of the Employer appears as corrected at the hearing.
114 NLRB No. 110.
722 . DECISIONS OF,NATIONAL LABOR RELATIONS BOARD
ers the shipments to its members. All deliveries are made within the
State.
Each member of the organization is assessed by the Employer for
its proportionate, share of the freight charges and for expenses of the
Employer's operations. From May 1, 1954, through April 30, 1955,
the total amount of such assessments was $356,122.01. Of this amount;
$268,375.69 was for freight charges. The assessments are collected
by the Employer from its members-before it is billed by the railroad,
and the amount for freight is put in an escrow fund until payment to
the railroad is due.
Under these circumstances, we are of the opinion that in collecting
freight-charges from its members the Employer is merely. acting as
their agent, and-that the, money collected for this purpose 'does Griot
constitute revenue to the Employer. As its other receipts amount
to less than $100,000 a year, we find that the Employer's operations
do not have a sufficient impact upon interstate commerce to justify the
Board in asserting jurisdiction herein.' Accordingly, we find that
no question affecting commerce exists concerning the representation
of employees of the Employer within thel meaning of Section 9 (c)
(1) and Section 2 (6) and (7) of the Act, and we shall dismiss the
petition.
[The Board dismissed the petition.]
MEMBER MURDOCK, dissenting :
I dissent from the refusal to assert jurisdiciton over this Employer.
I question whether the present applicable jurisdictional standard is
properly interpreted if this case is deemed not to meet the test. How-
ever, if the majority is correct that a proper interpretation of the
present standard does require a refusal to assert jurisdiction over this
Employer then this case presents a glaring example of how the
present jurisdictional standards fail to measure the true impact of
such activities on interstate commerce.
The Employer is a corporation owned by 350 to 400 Denver busi-
ness establishments, including wholesale houses and manufacturers,
which was formed to enable them to take advantage of economies in
shipment of interstate freight which would be achieved by combining
to take advantage of carload freight rates. Railroad cars containing
the less than carload lots of members' freight shipped from the east
coast to these' establishments come to the Employer's dock. The em-
ployees of this Employer unload the railroad cars and then sort and
deliver the freight by truck to the particular business establishments
which are the ultimate consignees. That this Employer is an es-
2 Breeding Transfer Company. 110 NLRB 493 , Edelen Transfer and Storage Company,
Inc., 110 NLRB 1881.
WEBSTER ELECTRIC COMPANY 723
sential link in a stream of interstate commerce moving from New
York to Denver business establishments is beyond dispute. That a
strike of this Employer's employees would result in a stoppage of this
flow of goods in interstate transit short of their final destination is
likewise beyond dispute. Nor can it be gainsaid that the value of this
freight must be many times the $268,375 freight charges made for it-
exactly how many million dollars is of course not known.
The majority comes to the astonishing conclusion that "the Em-
ployer's operations do not have a sufficient impact upon interstate com-
merce to justify the Board in asserting jurisdiction." It does so by
finding that the $268,375 the Employer collects from the members
for freight charges is collected merely as their agent and held in an
escrow fund so that it cannot be treated as "revenue" to the Employer,
and as the additional monies collected as part of the total of $356,122
amount to less than $100,000 per year, the $100,000 "income" or
"revenue" requirement of the standard laid down in Breeding Transfer
and Edelen Transfer is not met. The majority is apparently giving a
very restrictive interpretation to an already too-restrictive standard.3
Considerations of agency, title to funds, etc., are all very absorbing
matters for legal speculation and hairsplitting but it is obvious that
they have absolutely nothing to do with appraising the impact on the
stream of interstate commerce of a work stoppage of this Employer's
employees. Either the present standards should be given a sufficiently
liberal construction to assert jurisdiction over this Employer or the
inadequacies of the standards should be recognized and they should be
revised at the very least to a point which would permit the facilities
of the Board to be utilized to protect the free flow of interstate
commerce of the magnitude here involved.
' See my dissent from the adoption of the standard in BP ceding Transfer, 110 NLRB
40i .120-522
Webster Electric Company and Local No. 849 of the Interna-
tional Association of Tool Craftsmen , Petitioner. Case No.
13-RC-4984. October 27,1955
SUPPLEMENTAL DECISION, ORDER, AND CERTIFICA-
TION OF REPRESENTATIVES
On August 17, .1955, pursuant to a Decision and Direction of
Election in the above-entitled proceeding,' an election by secret ballot
was conducted under the direction and supervision of the Regional
Director for the Thirteenth Region among the employees of the Em-
1 Not reported in printed volumes of Boas d Decisions and Orders
114 NLRB No. 114
387644-56-vol. 114-47