Transportation Associates of Hawaii, Ltd.

National Labor Relations Board - Board Decisions

Jan 30, 1975

216 N.L.R.B. 357 (N.L.R.B. 1975)

TRANSPORTATION ASSOCIATES OF HAWAII, LTD.
Transportation Associates of Hawaii, Ltd. and Hawaii
Teamsters & Allied Workers Local 996 . Case AO-
161
January 30, 1975
ADVISORY OPINION
BY ACTING CHAIRMAN FANNING AND
MEMBERS JENKINS, KENNEDY, AND PENELLO
On October 15, 1974, Transportation Associates of
Hawaii, Ltd., herein called the Employer, filed a
petition for an Advisory Opinion, in conformity with
Sections 102.98 and 102.99 of the National Labor
Relations Board's Rules and Regulations , Series 8, as
amended, seeking to determine whether the Board
would assert jurisdiction over the Employer's opera-
tions.
In pertinent part, the petition alleges as follows:
1. There is presently pending before the Hawaii
Employment Relations Board, State of Hawaii,
Department of Labor and Industrial Relations,
herein called the State Board, a petition for election,
Case 740030, filed by Hawaii Teamsters & Allied
Workers Local 996, herein called the Union, seeking
an election among the full-time and regular part-time
drivers, dispatchers, bus washers, and mechanics
employed by the Employer.
2. The Employer, a surface transportation com-
pany, is engaged in the tour business and operates
buses in Honolulu, Hawaii. It describes itself as
either a public utility or transit system. During the
calendar year ending December 31, 1973, the
Employer's total volume of sales and services
amounted to more than $350,000. During that same
period, the Employer locally made sales and ren-
dered services in excess of $110,000 to firms which
themselves made sales to customers outside the State
of Hawaii; and it also purchased goods or services
equal to, or in excess of, $50,000 directly from
outside the State of Hawaii.
3. The State Board does not appear to have made
any formal findings concerning the aforesaid com-
merce data. Upon the Employer's information and
belief, the data is not disputed by any party.
4. On information and belief the Employer states
there is no current representation proceeding involv-
ing it pending before the Board, although the Board
asserted jurisdiction over it and conducted an
election among its employees in Case 37-RC-1818 in
January 1973.
i Sioux Valley Empire Electric Association, 122 NLRB 92 (1958);
Charleston Transit Company, 123 NLRB 1296 (1959).
2 International Longshoremen & Warehousemen 's Union, and Local No 13
216 NLRB No. 60
357
5. Although served with a copy of the petition
herein, no response thereto has been filed by any
interested party.
On the basis of the above, the Board is of the
opinion:
1. The Employer, a surface transportation com-
pany, is either a public utility or transit system
enterprise, engaged in the business of providing tour
bus service in Honolulu, Hawaii.
2. The Board's current standards for the assertion
of jurisdiction over public utilities or transit systems
are a gross annual volume of business of at least
$250,000.1
3. As indicated above, the Respondent's annual
gross volume of business is in excess of $350,000 of
which more than $110,000 represented sales and
services to local firms which themselves made out-of-
state sales. In addition, the Employer had direct
inflow equal to, or in excess of, $50,000 by virtue of
its purchases of goods and services directly from
outside the State of Hawaii. On the assumption that
the Employer's operations are either a public utility
or a transit system, the Board's standard is met.2
Assuming operations are neither, and that the retail
standard is normally applicable to "tour services,"
here it is clear that the Employer also furnishes such
services to enterprises which services are nonretail in
nature. J. S. Latta & Son, 114 NLRB 1248 (1955);
Bussey-Williams Tire Co., Inc., 122 NLRB 1146
(1959); John J. Harris & Scotty Harris, d/b/a
Culligan Soft Water Service, 149 NLRB 2 (1964).
As the nonretail operations are not de minimis, the
nonretail standard3 applies-see Culligan. Moreover,
as a combination enterprise either the nonretail or
the retail standard is applicable. See Man Products,
Inc., 128 NLRB 546 (1960); Appliance Supply
Company, 127 NLRB 319 (1960); Joseph Crowden and
Thomas Crowden, A Partnership, d/b/a Indiana
Bottled Gas Company, 128 NLRB 1441 (1960). The
nonretail standard is met here.
Accordingly, we would assert jurisdiction here on
the basis that the Employer meets the transit or
public utility jurisdictional standard and also would,
in any event, meet the nonretail standard if consid-
ered a combination enterprise.
In his dissent, Member Kennedy stresses the fact
that the Employer put an "X" on the commerce
questionnaire at "Public Utility or transit system,"
described its business in general terms on the
petition, and in the state proceeding it described its
business as being simply "tour." Thus, Member
Kennedy argues that we should not issue an
Advisory Opinion as we do not know what type of
(Catalina Island Sightseeing Lines), 124 NLRB 813 (1959).
3 Siemons Mailing Service, 122 NLRB 81 (1958).
358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
business the Employer operates and the tests Mem-
ber Kennedy would apply to a "tour" bus operation
are different from those applied to a "transit system."
The Employer however does over $110,000 per year
of business for local firms such as Greyhound, thus
negating the importance of the classification of the
Employer as falling in one niche or the other since
the Employer would meet our general nonretail
standard.
Accordingly, the parties are advised under Section
102.113 of the Board 's Rules and Regulations, Series
8, as amended , that, on the allegations submitted
herein, the Board would assert jurisdiction over the
Employer's operations with respect to disputes
cognizable under Sections 8, 9, and 10 of the Act.
MEMBER KENNEDY , dissenting:
I am unwilling to preempt the State of Hawaii from
the continued processing of its representation pro-
ceeding before the Hawaii Employment Relations
Board on the basis of incomplete and inadequate
facts.
My colleagues are advising the parties to the
proceeding already before that state agency that this
Board would assert its jurisdiction over the Employer
without having sufficient facts to know what is the
exact nature of the Employer's business. The majori-
ty assumes that either the Employer is a public
utility, or it is a transit system. The basis for their
alternative conclusion is the commerce questionnaire
attached to the petition for an Advisory Opinion. On
the questionnaire the employer is asked to:
4 Sightseeing Guides and Lecturers Union Loca l 20076 of Greater New
York, AFL-CIO (A BT Sightseeing Tours, Inc, eta!), 133 NLRB 985 (1961);
Walter Carl Ray, et a!, d/b/a Ray, Davidson & Ray, 131 NLRB 433 (1961).
5 The fact that the Resident Office conducted an election almost 2 years
Indicate with an X classification(s) which best
describe(s) your business. Processing and/or
manufacturing (), Wholesaling ( ), ( ), outlet (),
Service Organization (), Public Utility or transit
system ( ), Newspaper and/or broadcasting
station ( ), Other ( ), describe: ---
The Employer merely put an "X" by "Public utility
or transit system."
In its petition, the Employer described its opera-
tions only in very general terms. It said: "The general
nature of the business involved in the proceeding is
that of a surface transportation company operating
buses."
In the state proceeding, the petition filed by the
Union describes in one word the general nature of
the business of the Employer as being simply: "tour."
Like piecing together the parts of a jigsaw puzzle,
my colleagues then conclude that the Employer must
be engaged in "providing tour bus service in
Honolulu, Hawaii."
It is unwise, in my view, for this Board to issue
Advisory Opinions on the basis of sketchy facts and
conclusionary statements. If the Employer does, in
fact, provide a tour bus service similar to a
sightseeing business for tourists, then I would apply
the $500,000 retail gross volume standard to the
Employer's operations.4 Since the Employer's gross
for 1973 was $358,000, the Employer's gross volume
would not meet the retail standard. However, I am
not willing to assume or speculate on what the facts
are, or what legal conclusions should be drawn, when
this Board has the means for obtaining such facts
and the obligation to do so.5 Accordingly, I dissent.
ago does not provide a basis for currently asserting our jurisdiction at this
time. Indeed, the Employer asserts that , "on the basis of its current
standards ," the Employer is "in doubt whether the Board would so assert its
jurisdictional standards."