Rio Grande Motor Way, Inc.

National Labor Relations Board - Board Decisions

Apr 15, 1974

210 N.L.R.B. 73 (N.L.R.B. 1974)

RIO GRANDE MOTOR WAY, INC. 73
Rio Grande Motor Way, Inc. and International
Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America , Local Unions
Nos. 961 , 146 and 222, Jointly, Petitioner. Case
27-RC-4533
April 15, 1974
DECISION AND DIRECTION OF
ELECTION
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a
hearing was held on April 30, 1973, before Hearing
Officer Merrill M. McLaughlin. Following the
hearing and pursuant to Section 102.67 of the
National Labor Relations Board Rules and Regula-
tions and Statements of Procedure, Serves 8, as
amended, and by direction of the Regional Director
for Region 27, this matter was transferred to the
National Labor Relations Board for decision. There-
after, briefs were filed by the Petitioner and Brother-
hood of Railway, Airline, and Steamship Clerks,
Freight Handlers, Express and Station Employees,
AFL-CIO (herein called Intervenor), which inter-
vened at the hearing on the basis of its contract with
the Employer covering the employees in question.
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 Hearing Officer's rulings made at the hearing
are free from prejudicial error and are hereby
affirmed.
The Board has considered the entire record in this
case , including the briefs of the parties, and hereby
makes the following findings:
1. At the hearing, the parties stipulated that Rio
Grande Motor Way, Inc., is a Colorado corporation
engaged in the handling of freight and the transpor-
tation of freight within the States of Colorado, Utah,
and New Mexico, and that it regularly engages in
interstate transportation of freight and regularly
receives income in excess of $50,000 annually for the
transportation of freight received from customers
outside the State of Colorado. However, at the
hearing and in its brief, the Intervenor contended
that because the Employer is a wholly owned
subsidiary of either the Denver and Rio Grande
Western Railroad or Rio Grande Industries, Inc., a
company which owns the stock of the railroad, the
Employer is subject to the jurisdiction of the Railway
Labor Act and is not an employer within the
meaning of Section 2(2) of the National Labor
Relations Act.'
Because of the nature of the question presented
here, we have in this case, as in other cases in the
past,2 requested the National Mediation Board, as
the agency primarily vested with jurisdiction under
the Railway Labor Act over rail carriers and having
primary authority to determine its own jurisdiction,
to study the record in this case and determine the
applicability of the Railway Labor Act to the
Employer. We are administratively advised by the
National Mediation Board, under date of February
14, 1974, that:
The Board has concluded that Rio Grande
Motor Way, Inc. engages as a motor common
carrier primarily and preponderantly in the
performance of over-the-road, line-haul trucking
service which is available to the general public.
Therefore, Rio Grande Motor Way, Inc. would
not be subject to the Railway Labor Act which
provides in pertinent part:
"The term `carrier' includes any express
company, sleeping-car company, 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
trucking service) in connection with the
transportation, receipt, delivery, elevation,
transfer in transit, refrigeration or icing,
storage, and handling of property transport-
ed by railroad, and any receiver, trustee, or
other individual or body, judicial or other-
wise, when in the possession of the business
of any such `carrier' ...." (See 45 USC
151, First)
In view of the foregoing, we find that the Employer
is not subject to the Railway Labor Act, and,
accordingly, we find it is an employer within the
meaning of Section 2(2) of the National Labor
Relations Act, and that it will effectuate the policies
of the Act to assert jurisdiction herein.
2. The parties stipulated and we find that the
Petitioner and the Intervenor are labor organizations
within the meaning of the Act.
3. The Intervenor contends that the petition was
filed outside the 90-60-day "open" period preceding
I Subsequent to the filing of the briefs herein the Intervenor , by letter had already been referred to the National Mediation Board for its opinion,
dated August 15, 1973, indicated that it was willing to consent to the the matter was allowed to proceed through its normal course.
National Labor Relations Board 's jurisdiction in this case As the matter 2 New York Central Transport Company, 138 NLRB 1325.
210 NLRB No. 18
74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the expiration of the Intervenor's then existing
collective-bargaining agreement. The Intervenor's
contract with the Employer covering these employees
by its terms became effective on July 1, 1970, and
"shall remain in full force and effect until July 1,
1973." The petition was filed on April 2, 1973.
Counting April 2, 1973, the date the petition was
filed and adding the days up through and including
June 30, it is clear that the petition was filed exactly
90 days prior to the termination date of the contract,
if the contract expired midnight, June 30, 1973. The
Intervenor argues, however, that the phrase "shall
remain in force and effect until July 1, 1973"
(emphasis supplied) puts the termination date of the
contract July 1, 1973, at midnight, thereby requiring
a finding that the petition was filed 91 days before
the expiration of the contract.
We find no merit in this contention. The facts
before us clearly show that it was the intention of the
Employer and the Intervenor to enter into a 3-year
contract and under normal contract interpretations,
a 3-year contract expires on the last day of the third
year, to wit, in the instant case, June 30, 1973.
However, even if we were to accept the Intervenor's
contention, we would still find that the petition was
timely filed. If we accept midnight, July 1, 1973, as
the terminal date, then it is clear that the contract
would have a duration of 3 years and 1 day. As such
a contract exceeds our rule limiting contracts for bar
purposes to 3 years we find that the petition was filed
90 days prior to the termination date (June 30, 1973)
of the first 3-year period of the contract and that the
petition was accordingly timely filed.3
Accordingly, in view of the foregoing conclusions,
we find that a question affecting commerce exists
concerning the representation of employees within
the meaning of Sections 9(c)(1) and 2(6) and (7) of
the Act.
4. In accordance with the stipulation of the
parties at the hearing, the following employees
constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act:
All office clerical workers, office machine
operators, office messengers and parts room
clerks including general bookkeepers, the chief
rate clerks at Denver and Salt Lake City, the
assistant chief rate clerk, Denver, the Chief Clerk,
Denver Shop, the secretary to the comptroller,
secretary to manager of transportation, secretary
to terminal managers at Denver and Salt Lake
City employed by the Employer in the States of
Colorado, New Mexico and Utah, but excluding
the payroll accountant, travel agents who serve to
relieve terminal managers in their absence,
salesmen and solicitors, the secretary to the
president and general manager, the secretary to
the traffic manager, all other confidential employ-
ees, salesmen , guards, professional employees,
supervisors and all other employees.
[Direction of Election and Excelsior footnote
omitted from publication.]
3 Penn-Keystone Realty Corp., 191 NLRB 800, 802.