Northern Pacific Transport Co.

National Labor Relations Board - Board Decisions

May 24, 1950

89 N.L.R.B. 1561 (N.L.R.B. 1950)

In the Matter of NORTHERN PACIFIC TRANSPORT COMPANY, EMPLOYER
and JOINT COUNCIL No. 23 OF THE INTERNATIONAL BROTHERHOOD OF
TEAMSTERS , CHAUFFEURS , WAREHOUSEMEN , AND HELPERS OF AMERICA,
AFL, PETITIONER
Case No. 19-UA-1971.-Decided May 24, 1950
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held before Howard A.
McIntyre, hearing officer of the National Labor Relations Board. At
the hearing, the Employer moved to dismiss the petition on the ground
that it is a "carrier" as defined in the Railway Labor Act and is not
subject to the jurisdiction of the Board. The hearing officer referred
this motion to the Board. For the reasons stated in paragraph num-
bered 1, infra, the motion is denied. 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 :
1. The Employer, a Delaware corporation with its headquarters
at Billings, Montana, is a common carrier by motor vehicle engaged in
the transportation of passengers and freight in the States of Montana
and Washington. It is a wholly owned subsidiary of the Northern
Pacific Railway Co., herein called the Railway Co., a common carrier
by railroad subject to the Railway Labor Act. The Employer conducts
its operations under the regulatory authority of the Bureau of Motor
Carriers of the Interstate Commerce Commission and the regulatory
agencies of the States in which it operates. It maintains a number
of scheduled and nonscheduled runs, sightseeing, and other motor
transport services, including nine intercity passenger bus runs, five
combination freight-passenger runs, and an undisclosed number of
freight runs.
Pursuant to an agreement between the two companies, the Employer
furnishes passenger and freight line-haul and other services to the
Railway Co., in connection with its transportation by rail. It also
89 NLRB 209.
1561
1562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
provides, under this contract, terminal pick-up and delivery services
for the Railway Co., maintaining separate operations rendering such
services at Sidney, Glendive, Miles City, Billings, Livingston, Boze-
man, Butte, and Missoula, Montana; and at Yakima, Washington.
At the smaller terminals of the Railway Co., it provides similar serv-
ices through its line-haul drivers and contract dray men. In addi-
tion to these substituted and coordinated services for the Railway Co.,
the Employer also handles intercity freight and passenger traffic that
is unrelated to the business of the railroad.
Its gross annual business is approximately $1,500,000, of which
20 percent represents income derived from its interstate operations.
Although the Employer concedes that it is engaged in interstate
commerce, it contends that it is a "carrier" as defined in Section 1 of
the Railway Labor Act, and, because of the provisions of Section 2
(2) and (3) of the National Labor Relations Act, is not subject to
our jurisdiction.
Section 2 (2) of the Act, as amended, provides, inter alia, that the
term "employer" shall not include "any person subject to the Railway
Labor Act." Section 2 (3) further provides that the term "employee"
shall not include "any individual employed by an employer subject
to the Railway Labor Act."
The Railway Labor Act 1 reads, in pertinent part, as follows :
The term "carrier" includes any . . . carrier by railroad
subject to the Interstate Commerce Act, and any company which
is directly or indirectly owned or controlled by or under common
control with any carrier by railroad and which operates any
equipment or facilities or performs any service (other than truck-
ing service) in connection with the transportation, receipt, de-
livery, elevation, transfer in transit, refrigeration or icing, storage,
and handling of property transported by railroad. . . . (Em-
phasis supplied.)
* *
The term "employee" as used herein includes every person in the
service of a carrier (subject to its continuing authority to super-
vise and direct the manner of rendition of his service) who per-
forms any work defined as that of an employee or subordinate
official in the orders of the Interstate Commerce Commission now
in effect, and as the same may be amended or interpreted by
orders hereafter entered by the Commission pursuant to the
authority which is hereby conferred upon it to enter orders amend-
ing or interpreting such existing orders... .
U. S. Code, Title 45, Sec. 151 et Req.
NORTHERN PACIFIC TRANSPORT COMPANY 1563
Section 1 (3) of the Interstate Commerce Act, cited as Part I
of the Interstate Commerce Act, to which the Railway Labor Act
refers, defines the term "railroad" as including "terminal facilities
of every kind used or necessary in the transportation of the persons
or property" designated in that section? Although the Motor Car-
rier Act of 1935, cited as Part II of the Interstate Commerce Act,3
accomplished as one of its purposes the regulation of motor line-haul
operations by railroads in the same manner as those of nonrailroad
motor operators, Sections 202 (c) and 203 (a) (14) of that statute,4
leaves jurisdiction over motor terminal pick-up and delivery services
for railroads to coverage by Part I of the Interstate Commerce Act.'
As the Railway Labor Act refers to the definitions in Part I of the
Interstate Commerce Act, quoted above in part, for the scope of its
coverage, it appears that motor terminal pick-up and delivery serv-
ices such as the Employer performs for the Railway Co. are regulated
indirectly as part of railroad transportation. Thus they are sub-
ject to the provisions of the former statute and are within the juris-
diction of the National Mediation Board. However, it is equally
apparent that passenger and freight motor line-haul operations simi-
lar to those of the Employer are subject to the provisions of
2 U. S. Code, Title 49, Sec. 1 (3) (a). This section also defines "transportation" as
including "locomotives, ears, and other vehicles, vessels, and all instrumentalities and
facilities of shipment or carriage, irrespective of ownership or of any contract. . . .
(Emphasis supplied.)
3 U. S. Code, Title 49, Chapter 8, Section 201 et seq.
4 Section 202 (c) reads in pertinent part :
Notwithstanding any provision of this section or of section 203, the provisions of
this part, except the provisions of section 204 relative to qualifications and maximum
hours of service of employees and safety of operations and, equipment, shall not apply-
(1) to transportation by motor vehicle by a carrier by railroad subject to part
I. . . . incidental to transportation or service subject to such parts, in the per-
formance within terminal areas of transfer, collection, or delivery services ; but such
transportation shall be considered to be and shall be regulated as transportation sub-
ject to part I when performed by such carrier by railroad . . .
(2) to transportation by motor vehicle by any person (whether as agent or under
a contractual arrangement) for a common carrier by railroad subject to part
I . . . in the performance within terminal areas of transfer, collection, or delivery
service ; but such transportation shall be considered to be performed by such car-
rier . . . as part of, and shall be regulated in the same manner as, the transportation
by railroad . . . to which such services are incidental. (Emphasis supplied.)
Section 203 (a) (14) states:
The term "common carrier by motor vehicle" means any person which holds itself
out to the general public to engage in the transportation by motor vehicle in inter-
state or foreign commerce of passengers or property or any class or classes thereof for
compensation, whether over regular or irregular routes, except tansportation by
motor vehicle by an express company to the extent that such transportation has
heretofore been subject to part I, to which extent such trahsportation shall continue
to be considered to be and shall be regulated as transportation subject to part I.
5 Cederblade v. Parmelee Transporation Co., 166 F. 2d 554 (C. A. 7, 1948). Cf. Anderson
v. Bigelow, 130 F. 2d 460 (C. A. 9, 1942). Prior to these decisions, the Commission itself
had held that railroad operation of motor truck terminal service was subject to Part I of
the Interstate Commerce Act. See "Pick-up and Delivery in Official Territory," 218 I. C. C.
441.
1564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Part II of the Interstate Commerce Act, i. e., the Motor Carrier Act
of 1935.13 Such line-haul, or intercity, operations are therefore not
within the jurisdiction of the National Mediation Board, but fall
within our jurisdiction.
We believe that the same reasons that resulted in our rejection
of a contention made in an earlier case that if an employer is "in any
measure subject" to the Railway Labor Act, none of its activities are
within the Board's jurisdiction,' should apply to the Employer's con-
tention in this case. In that case, we said : B
... The decisions of other administrative agencies, as well
as of the courts, are persuasive of the view that the terms "carrier"
and "employee" as used in the Railway Labor Act, are to be
interpreted realistically.
As it appears from the record in this proceeding that the Employer's
line-haul activities form a separable and substantial, if not the major,
part of its activities, and it is inescapable from the above-cited statutes,
court decisions, and administrative rulings, that such operations are
exempted from the coverage of the Railway Labor Act, we should
follow Board practice in cases involving similar operations and assert
jurisdiction over the Employer's line-haul passenger and freight
operations .9
Accordingly, we find that the Employer is engaged in commerce
within the meaning of the Act and, to the extent consistent with our
findings hereinabove, that it will effectuate the policies of the Act
to assert jurisdiction over its operations.
2. The Petitioner is a labor organization representing employees
of the Employer.
3. The petition herein alleges that more than 30 percent of the
employees in the unit represented by the Petitioner desire to authorize
the Petitioner to make an agreement with the Employer requiring
membership in the Petitioner as a condition of employment in such
unit, which allegation was supported by documentary evidence sub-
mitted by the Petitioner.
The Employer currently recognizes the Petitioner as the collective
bargaining representative of its employees under the terms of an
agreement that continues until June 1, 1950, and for annual periods
thereafter unless terminated. Therefore, no question affecting com-
9 See Anderson v. Bigelow, supra. Cf. U. S. v. American Trucking Associations, 310 U. S.
534.
4 Northwest Airlines, Inc., 47 NLRB 498.
'Ibid., p. 501.
9 See Richmond Greyhound Lines, Inc., 52 NLRB 1532; Northland Greyhound Lines, Inc.,
80 NLRB 288.
NORTHERN PACIFIC TRANSPORT COMPANY 1565
coerce exists concerning the representation of employees of the Em-
ployer in the unit hereinafter found appropriate. Accordingly, we
find that the Petitioner has satisfied the preliminary requirements
for a union-shop authorization election as set forth in Section 9 (e)
(1) of the Act.
4. The appropriate unit :
The Petitioner asserts that the election should be held in a unit
composed of all the Employer's intercity bus and truck drivers, pick-up
and delivery drivers, extra drivers, greasers, washers, and hostlers
domiciled in the State of Montana. Apart from its contention, dis-
cussed above, that the Board does not have jurisdiction over its
employees, the Employer takes no position as to the appropriateness
of the requested unit.10
In accordance with Section 2 (3) of the Act," and in view of our
findings hereinabove that the Employer's pick-up and delivery services
for the Railway Co., are indirectly regulated as a part of railroad
transportation under Part I of the Interstate Commerce Act, and
therefore appear to be subject to the Railroad Labor Act, we shall
exclude from the unit all pick-up and delivery drivers and employees
in related classifications who perform only terminal pick-up and
delivery services for the Railway Co.
We find that all the Employer's intercity bus and truck drivers,
extra drivers, greasers, washers, and hostlers domiciled in the State
of Montana, excluding all other employees and all pick-up and
delivery drivers and employees in related classifications performing
pick-up and delivery services for the Railway Co., and all supervisors
as defined in the Act, constitute a unit appropriate for the purposes
of Section 9 (e) (1) of the Act.
5. As some of the intercity, or line-haul drivers, also perform an
undisclosed amount of pick-up and delivery services for the Railway
Co., in the smaller terminal areas, we shall provide that only such
drivers who spend 50 percent, or more, of their working time in the
performance of line-haul driving duties, or related work, shall be
eligible to vote in the election hereinafter directed.12
20 Although the unit thus adopted is described by the parties as covering those
"domiciled " in the State of Montana , the record discloses that it was intended thereby to
include all those employees who are covered by the current contract between the Peti-
tioner and Employer.
See Northern Redwood Lumber Company, 88 NLRB 272.
ix Cf. Pepeekeo Sugar Company, et at., 59 NLRB 1532.
1566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DIRECTION OF ELECTION
Pursuant to Section 9 (e) (1) of the National Labor Relations Act,
as amended, an election by secret ballot shall be conducted as early
as possible, but not later than 90 days from the date of this Direction,
under the direction and supervision of the Regional Director for
the Region in which this case was heard, and subject to Sections 203.61
and 203.62 of National Labor Relations Board Rules and Regulations,
among the employees in the unit found appropriate. in paragraph
numbered 4, above, who were employed during the payroll period
immediately preceding the date of this Direction, including employees
who did not work during said payroll period because they were ill
or on vacation or temporarily laid off, but excluding those employees
who have since quit or been discharged for cause and have not been
rehired or reinstated prior to the date of the election, and also ex-
cluding employees on strike who are not entitled to reinstatement,
to determine whether or not they desire to authorize Joint Council No.
23 of the International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen, and Helpers of America, AFL, to make an agreement
with the Employer requiring membership in the aforesaid labor or-
ganization as a condition of continued employment in such unit.
CHAIRMAN HE tzoG took no part in the consideration of the above
Decision and Direction of Election.