Rollo Transit Corp.

National Labor Relations Board - Board Decisions

Dec 16, 1954

110 N.L.R.B. 1623 (N.L.R.B. 1954)

ROLLO TRANSIT CORPORATION 1623
test enunciated in the American Potash case. To say that a mush-
room union such as the petitioner meets the "traditional union test"
,of the Potash case, but that other craft and industrial unions with long
and successful histories of bargaining for crafts do not is both illogi-
cal and unreasonable. By its decision in this case, the majority has,
for all practical purposes, abandoned the "traditional union" test and
reinstated the rule in effect prior to the American Potash decision
which permitted craft severance irrespective of whether or not the
petitioning union was by history, tradition, and experience equipped
to serve and advance the special interests of the specific craft involved.
The petitioning union in this case clearly is a newly formed labor
organization and has not previously represented employees of the
tool and die craft. In these circumstances, we would adhere to the
Elgin Watch case and to the Board's prior finding in the present case
that the Petitioner does not now constitute a union which traditionally
represents tool and die employees within the meaning of the principles
enunciated in American Potash.
Accordingly, we would deny the Petition for Reconsideration.
RoLLo TRANSIT CORPORATION; ASBURY PARK-NEW YORK TRANSIT
CORPORATION; COASTAL CITIES COACH COMPANY 1 and LOCAL 1007,
BROTHERHOOD OF RAILROAD TRAINMEN , PETITIONER . Case No.
4-RC-2090. December 16,1954
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before William Draper Lewis, 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 :
1. Rollo Transit Corporation, Asbury Park-New York Transit
Corporation and Coastal Cities Coach Company,' are motorbus com-
panies with offices in Keyport, New Jersey. The Employer denies
that Rollo is engaged in commerce within the meaning of the Act.
It is not disputed, however, that Asbury and Coastal are engaged in
,commerce.
Rollo, Asbury, and Coastal are New Jersey corporations with com-
mon stockholders, directors, officers, and offices. Although each is a
separate corporate entity, the managerial personnel of Rollo and As-
bury are interchanged and act for each other as the needs of each
require. The manager of Asbury has on occasion directed Rollo's
1 The name of the Employer appears as corrected at the hearing.
2 Herein referred to as Rollo, Asbury, and Coastal respectively.
110 NLRB No. 228.
1624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
labor relations.' Employees of Rollo operate Asbury buses as replace-
ments for absent Asbury drivers.
Rollo's operations: Rollo operates an intrastate, intercity bus sys-
tem, a bus-leasing system, and a bus-renting or chartering system.
Its intercity system connects 10 New Jersey communities with a popu-
lation of approximately 75,000 persons. During 1952 it carried
1,000,630 passengers for which it received $112,222. At established
terminal points it connects with Asbury, the Jersey Central Railroad,
and other interstate rail and bus carriers 4 Rollo's bus-leasing opera-
tions consist of leasing to Asbury and Coastal all the buses used by
them. In addition, it leases one bus on an annual basis to the Jersey
Central Railroad. It also rents buses to persons, groups, and other
carriers. The destination of these buses, whether interstate or intra-
state, depends on the desires of its customers. As part of its lease
agreements Rollo furnishes the gas, oil, and tires used by its lessees.
In 1952 Rollo purchased from local sources gas and oil amounting to
$24,482 and tires amounting to $14,347.
Operations of Asbury and Coastal: Asbury operates along a 75-
mile route between Asbury Park, New Jersey, and New York City.
During 1952, its gross income amounted to $455,000 of which $350,000
was obtained from its interstate operations and the remainder from
its charter operations. As stated previously, the buses operated by
Asbury are leased from Rollo. Coastal operates a single bus, connect-
ing Ocean Beach, New Jersey, with Asbury's main route to New
York. This bus was furnished by Rollo.
It is clear that the operations of Rollo, Asbury, and Coastal are
integrated with each other and are conducted as a single operation
under common ownership and management. Accordingly, we find
that all three companies constitute a single Employer for purposes of
this case.
It has been the consistent position of the Board that it better ef-
fectuates the purposes of the Act, and promotes the promp handling
of major cases, not to exercise its jurisdiction to the fullest extent
possible under the authority delegated to it by Congress, but to limit
that exercise to enterprises whose operations have, or at which labor
disputes would have a pronounced impact upon the flow of interstate
commerce. In furtherance of that policy, the Board commencing in
October 1950 adopted certain standards to govern its assertion of
jurisdiction. Those standards resulted from a study of the Board's
experience up to that time.
The Board as part of its former jurisdictional plan asserted juris-
diction over intrastate transit systems "as instrumentalities of com-
8 After the filing of the petition herein , the manager of Asbury received and disposed of
grievances for two discharged employees of Rollo.
4 The record does not disclose what portion of Rollo's passengers use its line in con-
junction with interstate carriers.
ROLLO TRANSIT CORPORATION 1625
merce" without regard to their size or the possible impact upon intra-
state or interstate commerce.' In our opinion, that transit system
yardstick in a number of respects extended the scope of the Board's
operations far beyond their proper limits to matters of basically
local import. One instance of this, in our opinion, was the extension
of the Board's jurisdiction to all transit companies regardless of their
size or essentially local character. Therefore, in the future we shall
assert jurisdiction in cases involving exclusively intrastate transit
companies when the company receives $100,000 or more as a link in
the interstate transportation of passengers.° We shall also assert
jurisdiction in cases involving transit companies that operate both
intrastate and interstate, or exclusively interstate, when the transit
company derives (1) $100,000 or more in revenue from the interstate
portion of its operations or when (2) the combined total revenue
obtained from intrastate operations as a link in the interstate trans-
portation of passengers and from its interstate operations is in excess
of $100,000 per annum.
The inherent errors underlying the opinions expressed by our dis-
senting colleagues in this case have been fully explained in the major-
ity decision in Breeding Transfer Company, 110 NLRB 493, issued
October 26, 1954. Consistent with our similar position in the several
other recent decisions relating to the Board's new jurisdictional
standards, in all of which Member Murdock (sometimes joined by
Member Peterson) reiterated the same assertions made here, we be-
lieve no useful purpose would be achieved by restating our basic posi-
tion on this general policy determination.
We shall, however, allude briefly to the contention that the appli-
cation of any volume of business limitation on an "interstate carrier"
has no rational justification.
A basic fallacy in this argument is that it assumes that transporta-
tion companies can be separated into two mutually exclusive cate-
gories-that is to say (1) wholly intrastate and (2) wholly interstate
carriers. The fact is that many, and probably most, of the nation's
transportation companies do a combination intrastate and interstate
business. If the Board's assertion of jurisdiction could be related to
and limited to that portion of a combination business which is truly
interstate, as is done under some other Federal statutes, there would
be some force to the minority's argument. But our statute unlike, for
8 Direct Transit Lines, Inc., 92 NLRB 1715.
9 See also Greenwich Use Company , 110 NLRB 564 We do not regard an intrastate
transit company that merely connects with interstate carriers as a link in the interstate
transportation of passengers. In order that an intrastate transit company qualify as a
link in the interstate transportation of passengers , we shall require factors such as the
sale of tickets by it for a continuous passage using interstate lines or the sale of tickets
by connecting interstate lines for a continuous passage using the intrastate company, the
sharing of facilities by it with interstate companies , and the interchange of passes or
tickets between it and interstate companies
1626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
example, the Fair Labor Standards Act, makes jurisdiction attach
to the enterprise, and once jurisdiction is asserted on any basis, all
of the employees of the entire enterprise fall within our regulatory
ambit. Because of this, our standards must take into consideration
the fact that many transportation companies-as is true in this case-
have both local and interstate characteristics.
If we could make the sharp dichotomy on which the dissent is prem-
ised, it would perhaps logically lead us to decline jurisdiction over all
"local" transportation companies, and assert jurisdiction over all
"interstate" companies. To do so, however, would be to ignore the
interstate aspects of an "intrastate" transportation company (such as
was involved in Breeding Transfer) as well as the intrastate aspects
of an "interstate" company (such as the companies involved in this
case).
Thus, we have tried here, as in the Breeding Transfer case (where
we were dealing with an intrastate concern which was a link in inter-
state transportation) to devise and apply a standard which makes
jurisdiction attach where the interstate aspect of the business is truly
substantial. Indeed, we are applying precisely the same $100,000
standard. This is because we can see no real distinction in character
in the impact upon interstate commerce. In the one case, an intrastate
company constituting a link in the chain of commerce, transports
goods to another carrier which completes the journey across the State
line; in the other case, the carrier in question continues the journey
across the State line. Our standards here are based on the proposi-
tion that one link in the chain is as much a part of the entire inter-
state transaction as the other. We do not question the impact on com-
merce of both types of transportation companies. Our standards are
designed to implement our policy of limiting our jurisdiction to con-
cerns having a substantial impact on interstate commerce.
In this case, the volume of business performed directly across State
lines is substantial, amounting to more than $350,000 annually. We
therefore have no hesitation in finding that the interstate character-
istics of the Employer are substantial and, on balance, that we should
assert jurisdiction here despite the concededly substantial local part
of this transit system. The dissent, however, would have us assert
jurisdiction even when the interstate part of a transit company is a
small feeder line and the bulk of the business is intrastate. Such a
"tail wagging the dog" proposition ignores the basic premise of both
the 1950 and the present standards that the impact on interstate com-
merce be substantial.
The imposition of a minimum standard applicable to the interstate
portion of the business, which no one contends is not subject to precise
measurement, is an attempt to strike a balance which will give some'
weight in our jurisdictional determination to the local as well as the
ROLLO TRANSIT CORPORATION 1627
interstate aspects of transportation companies. Thus, we have deter-
mined that the interstate business must be truly substantial, and we
have, after careful consideration, drawn this line at $100,000 in inter-
state business. As we have said before, any fixed standard of this
kind is not altogether perfect. But the alternative is to decide these
questions on an ad hoc basis as they arise, an approach which the
Board abandoned in 1950 in favor of the administrative advantage of
certainty that can be obtained only by the establishment of predeter-
mined standards.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The following employees of the Employer constitute a unit ap-
propriate for the purposes of collective bargaining within the mean-
ing of Section 9 (b) of the Act:'
All bus drivers of Rollo Transit Corporation, Asbury Park-New
York Transit Corporation and Coastal Cities Coach Company, exclud-
ing dispatchers, mechanics, office employees, and supervisors as defined
in the Act.'
[Text of Direction of Election omitted from publication.]
MEMBERS MURDOCK and PETERSON, concurring in part and dissenting
in part :
While we join with the majority in finding that the Board should
assert jurisdiction herein, we must emphatically dissent from the
establishment of a requirement that interstate transportation com-
panies must have annual revenues of $100,000 or more from interstate
or "link" operations or both before this Board will assert jurisdiction.
This transit standard, although considerably altered in the interim,
is one of the numerous new and highly restrictive jurisdictional re-
quirements announced by the majority of the Board in press releases
of July 1 and 15. In our separate opinions in Breeding Transfer
Company, 110 NLRB 493, we stated our basic positions and points of
difference with these new jurisdictional standards as a whole. These
7 The Employer would establish 2 separate units, 1 for employees of Rollo alone, and
the other for employees of Asbury and Coastal . In view of the integration of operations
of the 3 companies , together with their common ownership , management, direction of labor
relations , and interchange of employees , we find that a single unit of employees of all 3
corporations is alone appropriate . See The McMahon Company , 89 NLRB 1652.
8 The Petitioner would include, and the Employer would exclude, 4 "occasional" em-
ployees of Rollo and 9 `occasional ' employees at Asbury. The Employer maintains lists
of these employees and calls them as required to replace absent regular drivers. These
employees may reject or accept employment. There is no evidence of the frequency of
employment of these drivers . We find therefore that they are casual rather than regular
part-time employees and shall exclude them . Decatur Transfer ,& Storage, Inc., 105 NLRB
633
1628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
objections apply in full to the particular standard here concerned.
Further, in our dissenting opinion in Greenwich Gas Company, 110
NLRB 564, we discussed the particular ill effects of these new stand-
ards insofar as they applied to public utilities in general , including
public transportation. Until now, however, this particular standard
has never been set forth in decisional form. Accordingly, we shall
restrict ourselves, herein, to those aspects of the $100,000 standard for
transit lines not detailed previously.
A transportation firm will henceforth be confronted with a variety
of jurisdictional standards. Parenthetically, it might be noted that
while the majority decision herein apparently is restricted in effect to
these companies transporting passengers, substantially the same
standards are being applied to companies transporting freight by the
Edelen decision.° Those firms whose operations are of an intrastate
nature may be subject to the $3,000,000 annual gross receipts test of
the Greenwich (public utility) standard or the variants of the
$100,000 standard contained herein and in the Breeding Transfer and
Edelen decisions . Or, to put it more precisely, if that is possible, a
firm whose operations are entirely within one State will be subject
to our jurisdiction if, viewed as a public utility, it has gross annual
receipts of $3,000,000 or if it has $100,000 in annual receipts from
services as a "link" in the interstate transportation of persons or goods.
A firm whose operations are interstate in whole or in part must, in
turn, have annual gross receipts of $100,000 from its interstate busi-
ness or $100,000 annual gross receipts from those operations plus its
intrastate "link" operations. As in other respects of the new juris-
dictional standards, this is, to say the least, a complex formula for
the assertion of jurisdiction.
The majority decision here, unlike those in many of the other juris-
dictional " lead" cases , sets forth a rationale for this set of standards.
In brief, the majority assert that this plethora of annual receipts tests
is necessary to avoid a "sharp dichotomy" in the Board's past juris-
dictional practices which, in the majority's words, allowed the tail to
wag the dog. On this premise, it is then asserted that the phalanx of
$100,000 tests as set forth above is clearly necessary.
With due respect to the majority, we believe that a few matters are
lacking in this attempted justification. For example, from whence
came the determination that gross receipts of $100,000 is the key-
the line of decision-denoting that which should be protected from
the impact of labor disputes and that which should not? To our
knowledge, there is no study before the Board, no compilation of find-
ings in past cases or pending cases, no inquiry into the importance
or role of such enterprises, no comparable finding by any other public
or private source, which provides a reason for the selection and use
O Edelen Transfe, and Storage Company, Inc., 110 NLRB 1881
ROLLO TRANSIT CORPORATION 1629
of this figure by the Board. Lacking any substance or sound basis,
itb would seem to have no more validity than any other number pulled
out of thin air.
The unacceptability of these standards, however, goes far beyond
the apparently chance selection of $100,000 in gross receipts as the
determining factor in whether or not the Board should assert juris-
diction. For we can ascertain no reason why any amount of gross
receipts above that of de vninimi$ amounts should be made the deter-
mining factor in the assertion of jurisdiction over interstate transit
lines. Surely our,exercise of jurisdiction should bear some reasonable
relationship to the degree that the particular enterprise's operations.
bears to commerce between the States. Thus, the Board has con-
sistently found a more pressing necessity for the protection of direct
interstate transactions and activity as compared to activity which is
apart from, though affecting, that commerce between and among the
States. And for enterprises so intimately a part of interstate com-
merce as transportation and communication operations, we have pre-
viously made no dollar minimum requirements at all. The reason is
clear. These operations are interstate commerce and constitute the
very instrumentalities by which commerce between and among the
States is carried on. A factory may buy and sell exclusively within
the confines of the State in which it is physically located; it may do
so and still have operations which "affect commerce" within the mean-
ing of the Act and which require the assertion of our jurisdiction.
But a truck or a bus carrying a payload across State lines is interstate
commerce in its very essence and, if we are to protect that commerce
from the impact of labor disputes the assertion of jurisdiction is
automatic.
The majority, it is clear, ignores this fundamental fact by establish-
ing, for the first time, barriers to the assertion of jurisdiction, over
enterprises which are the very instrumentalities and channels of com-
merce. The $100,000 minimum receipts test for interstate transporta-
tion is Indefensible on this ground alone. Moreover, the incongruity
of this particular standard is pointed up vividly by the fact that,
under the majority's new jurisdictional plan, a factory which ships
$50,000 in value of goods across a State line is sufficiently engaged in
interstate commerce to warrant assertion of our jurisdiction. The
trucking company, however, which actually transports these goods as
well as perhaps hundreds of thousands of dollars in value of other
goods across State lines is held not to be sufficiently engaged in com-
merce to warrant the assertion of our jurisdiction because it receives
$99,000 in cartage fees for such services. This, we believe, is both
anomalous and self contradictory.
But the $100,000 minimum for interstate lines is not the only
standard enunciated here. The majority decision also creates new
1630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conditions for "link" carriers whose operations are coordinated with
interstate travel. We have previously discussed the basic questions
as to jurisdiction over such carriers in our separate opinions in Breed-
ing Transfer Company, supra. However, we note that in this de-
cision , the majority add new and stringent qualifications as to. what
carriers are to be considered in this "link" classification. These new
indicia, contained in a footnote of the majority opinion, are complex
and numerous enough to preclude full discussion herein. It should
be stated, however, that, to our knowledge, there has again been no
study as to the necessity or the content of these qualifications or to
the effect on commerce of enterprises which they would exclude by
their terms.
It is perhaps appropriate here to mention again the rationale on
which the majority base both the $100,000 standard as to interstate
lines and as to "link" carriers. The majority, as we have noted, take
the position that prior Board decisions as well as this dissenting
opinion rest upon a false dichotomy of transportation which en-
visaged purely interstate and purely intrastate transportation com-
panies. The actual fact, of course, is that, until the creation of this
current group of standards, the Board made no attempt to divide its
jurisdiction over transportation on the basis of clearly interstate and
clearly intrastate lines. Instead the Board, we think correctly, held
that such enterprises would be subject to our jurisdiction, whatever
the locale of their operations, if they were, in fact, instrumentalities
or channels of commerce. The confusion of the majority as to this
point perhaps stems from our discussion of the fact that interstate
transportation when it occurs is, per se, interstate commerce. In fact,
if a "dichotomy" of any type exists, it appears to be in the approach
of the majority for in this decision the public is informed that "link"
firms have operations of equal importance with those crossing State
lines, while in the Breeding Transfer majority opinion the public was
informed that these "link" operations were essentially local and thus
required different treatment.
Finally, we are struck by another tacit revision of the standards
as they were first announced in the press releases. Both here, and in
the Edelen Transfer decision, the majority announce that receipts
from "link" and interstate operations may be combined to meet the
$100,000 standard for either. While we would agree that this is cer-
tainly a logical approach, the question immediately occurs as to why,
if a combination is allowed here, it should not be allowed in other
areas of the new standards. The majority has only recently outlawed
the Rutledge or combination formula in its entirety in the Jonesboro
decision.lo
10 110 NLRB 481 . Member Murdock notes that he dissented in detail from that action
in his dissent in Rogers Bros. Wholesalers , 110 NLRB 604.
UNION BAG & PAPER CORPORATION 1631
It seems obvious at this point that, in their zeal to frame new stand-
ards which will cut the Board's jurisdiction in order to reallocate
Federal authority over labor relations to the States, the majority has
,given little consideration to the actual relationship of activity of the
type here involved to commerce, or, indeed, to any consistent approach
to that problem.
For those reasons, therefore, and for the reasons set forth in our
separate opinions in Breeding Transfer Company and Greenwich Gas
Company as well, we must dissent from the $100,000 minima estab-
lished herein.
UNION BAG & PAPER CORPORATION and LOCAL LODGE #722, INTERNA-
TIONAL ASSOCIATION OF MACHINISTS , AFL, PETITIONER . Case No.
d-RC-6941. December 16,1954
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing' was held before Leonard J. Lurie, hearing
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 :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent employees
of the Employer.'
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act.
The Petitioner seeks to represent a unit of the production and main-
tenance employees at the Employer's machine shop in Hudson Falls,
New York. Since sometime in the late 1930's the Intervenor has rep-
resented the production and maintenance employees of the Employer's
bag factory and paper mill or honeycomb department. In 1946 the
Employer recognized the Intervenor as representative of the machine
shop employees, who were added to the unit of bag factory and honey-
comb department employees. The machine shop manufactures ma-
chinery, 90 percent of which is shipped to various plants of the Em-
ployer in other parts of the country. On July 1, 1954, the Employer
sold the bag factory which employed 250 employees, and now operates
only the honeycomb department which employs 27 employees, and
1
International Brotherhood of Pulp, Sulphite & Paper Mill Workers, AFL, hereinafter
referred to as the Intervenor, was permitted to intervene on the basis of its contractual
interest In the employees involved.
110 NLRB No.243.