New York Central Transport Co.

National Labor Relations Board - Board Decisions

Sep 28, 1962

138 N.L.R.B. 1325 (N.L.R.B. 1962)

NEW YORK CENTRAL TRANSPORT COMPANY 1325
4. The aforesaid unfair labor practices having occurred in connection with the
operations of Van Orman-Fort Wayne Corporation as set forth under section I,
supra, have a close , intimate, and substantial relation to trade, traffic , and commerce
among the several States and substantially affect commerce within the meaning of
Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
New York Central Transport Company and Sidney Schwartz.
Case No. 7-CA-3344. September 28, 1962
DECISION AND ORDER REMANDING CASE TO THE
TRIAL EXAMINER
On June 29, 1962, Trial Examiner Eugene E. Dixon issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent is not an employer within the meaning of Section
2(2) of the Act and recommending that the complaint herein be
dismissed as set forth in the attached Intermediate Report. There-
after, the General Counsel filed exceptions to the Intermediate Re-
port and a supporting brief. A brief was filed by the Respondent.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Rodgers, Fanning, and Brown].
The Board has considered the Intermediate Report, the exceptions
and briefs, and the entire record in the case, and finds merit in the
General Counsel's exceptions.
The Respondent, New York Central Transport Company, a wholly
owned subsidiary of the New York Central Railroad Company, does
business in seven States, including Michigan. During the first 9
months of 1961, Respondent received a total revenue of about
$9,250,000. Of this amount, $250,000 was due to pickup and delivery
via truck from shipper to receiver; an equivalent amount was re-
ceived from leasing flexivans to the New York Central Railroad;
and $37,000 was received in the form of commissions for the ship-
ment by truck of privately owned household furniture. The largest
amount, $4,750,000 was directly earned from interstate piggyback
operations performed for the New York Central Railroad Company.
Deliveries of packaged material for shipment by railroad boxcar
and interstate truck deliveries from terminals produced $1,312,000 in
revenue. The Respondent collected $2,860,000 from trucking service
for delivery of goods from a rail terminal to points of destination.
Testimony taken at the hearing revealed that about 10 percent
of the Detroit area operation is devoted to intercity mail service pur-
suant to Government contract. This service includes both the high-
way hauling of preloaded trailers, and piggyback transportation. It
138 NLRB No. 131.
1326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was further testified that Respondent operates under motor carrier
certificates from the Interstate Commerce Commission which au-
thorized it to perform substituted-for-rail service throughout the New
York Central System.
Section 2(2) of the National Labor Relations Act, as amended,
provides:
The term "employer" . . . shall not include . . . any person
subject to the Railway Labor Act... .
Because of the nature of the question presented here, we have in
this case, as in other cases in the past,' requested the National Media-
tion Board as the agency primarily vested with jurisdiction, under
the Railway Labor Act, over rail carriers and having primary au-
thority to determine its own jurisdiction, to study the record in this
case and determine the applicability of the Railway Labor Act to
the Respondent. We are administratively advised by the National
Mediation Board, under date of August 6, 1962, that :
The National Mediation Board does not agree with the report
of the Trial Examiner to the effect the New York Central Trans-
port Company is subject to the Railway Labor Act. . . . This
opinion is based on the language of Section 1, First of the Rail-
way Labor Act reading, in part, as follows :
"The term `carrier' includes any express company, sleeping
car company, carrier by railroad, subject to the Interstate Com-
merce 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
transported by railroad, and any receiver, trustee, or other in-
dividual or body, judicial or otherwise, when in the possession
of the business of any such `carrier' :"
The National Mediation Board finds that the New York Cen-
tral Transport Company is not a carrier within the meaning of
the Railway Labor Act.
In view of the foregoing, we find, contrary to the Trial Examiner,
that Respondent is not subject to the Railway Labor Act because it
comes within the "(other than trucking services)" exception to sec-
tion 1, First of the Railway Labor Act. 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. We shall therefore remand this
i See, e.g., Bradley Flying Service, Inc., 131 NLRB 437 ; Interior Enterprises, Inc.,
122 NLRB 1538.
NEW YORK CENTRAL TRANSPORT COMPANY 1327
proceeding to the Trial Examiner for the preparation of a Supple-
mental Intermediate Report on the substantive issues raised by the
complaint.
ORDER
IT IS HEREBY ORDERED that the above-entitled proceeding be, and
it hereby is, remanded to the Trial Examiner for the preparation
and issuance of a Supplemental Intermediate Report setting forth
his findings of fact, conclusions of law, and recommendations with
respect to the unfair labor practices alleged in the complaint.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding, brought under Section 10(b) of the National Labor Relations Act
as amended (61 Stat. 136), herein called the Act, was heard before Trial Examiner
Eugene E. Dixon at Detroit, Michigan, on March 21 and 22, and April 24, 1962,
pursuant to due notice. The complaint, issued by the representative of the General
Counsel for the National Labor Relations Board (herein called the General Counsel
and the Board) on January 26, 1962, and based upon charges filed by Sidney
Schwartz, an individual, on September 5, 1961, alleged that New York Central
Transport Company, the Respondent herein, had engaged in unfair labor practices
in violation of Section 8(a)(1), (3), and (4) of the Act by terminating its em-
ployee, Sidney Schwartz, and failing and refusing to reinstate him because of his
activity on behalf of Local 299, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen, and Helpers of America, Ind., herein called ,the Union. The com-
plaint also alleged certain acts of interference, restraint, and coercion on the part of
Respondent with the rights guaranteed its employees in Section 7 of the Act.
In its duly filed answer, Respondent denied the commission of any unfair labor
practices but admitted certain allegations of the complaint including the jurisdictional
facts alleged therein and the allegation that it is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
After the hearing closed the Charging Party requested permission to withdraw his
charges. In view of the General Counsel's opposition thereto and the public nature
of the rights involved, the Charging Party's request was denied.
Upon the entire record in the case and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
THE BUSINESS INVOLVED
Respondent is, and at all times material herein has been, a duly organized and
existing corporation which is a wholly owned subsidiary of New York Central Rail-
road Company. Its principal and executive offices are located at 230 Park Avenue,
New York, New York, and it operates in the States of New York, Massachusetts,
Pennsylvania, Ohio, Michigan, Illinois, and Indiana. At all times material Re-
spondent has maintained a place of business at Detroit, Michigan (the installation
herein involved) and has been engaged in the business of operating terminals and
a trucking service whereby truck vans (known as flexivans) are transported to
railroad terminals and loaded and shipped on railroad flatcars to other terminals and
are then hauled by Respondent's trucks from railroad terminals to the ultimate
destination. Respondent also delivers packaged material for shipment by railroad
boxcars and then delivers said material from the railroad terminal to its ultimate
destination by truck.
During the first 9 months of 1961, which period is representative at all times
material herein, Respondent, in the course and conduct of its business operations,
received a total revenue of $9,150,000, of which $250,000 was received from pickup
and delivery via truck from shipper to receiver, which shipments were shipped and
received across State lines; $250,000 of which was received from the lease of certain
equipment to the New York Central Railroad Company; $4,750,000 of which was
received from shipment of truck vans via railroad and delivery by truck from the
railroad terminal to final destination, which shipments originated in one State, were
transported across State lines and delivered in another State; $1,312,000 of which
1328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was received from delivery of packaged material for shipment by railroad boxcar,
which material was transported across State lines and delivered by truck from the
railroad terminal to its destination, which destination is in a State other than that
from which it was shipped; $2,860,000 of which was received from trucking service
wherein goods are delivered from a rail terminal to points of destination; $37,000
of which was received as commission for shipment of household furniture for private
owners by truck.
In addition to the foregoing facts, all of which were alleged in the complaint and
admitted in the answer, further evidence as to Respondent's operations was adduced.
Thus, Walter Pronyk, Respondent's Detroit terminal manager (whose responsibility
extended over its entire Michigan operation) estimated that about 10 percent of the
Detroit area operation is devoted to a mail service between various cities. This
service is performed pursuant to a contract between the New York Central Rail-
road and the Government. Some of this service involves transportation and delivery
of preloaded trailers directly between post offices in various cities. Some involves
transportation of such trailers (or flexivans) from post offices to rail terminals for
further ,rail transportation. The proportion of each was not revealed.
Francis P. Reynolds, vice president and treasurer of Respondent, besides confirm-
ing the jurisdictional facts to which the parties had stipulated supra, offered testimony
which "further clarified them" as follows: Respondent operates under motor carrier
certificates from the Interstate Commerce Commission and various State regulatory
agencies. These certificates (or at least the ICC certificate) authorizes Respondent
to perform "certain substituted-for-rail service throughout the system of the New
York Central Railroad Company" solely for that company. It appears from
Reynold's testimony that all of the categories of service mentioned in the above
stipulation, except the $37,000 item regarding household furniture shipments were
types of service that were directly connected with rail transportation at some stage
in their movement i While Reynolds testified that Respondent provides local cartage
service to the general public and motor service for transportation of mail, there was
no indication what proportion of Respondent's business was devoted to these two
classes of service. In view of Reynolds' confirmation of the overall figures and
categories of the service alleged in the complaint, and his other testimony it would
appear, and I find, that the amount of local cartage and mail services unconnected
with rail transportation that is performed by Respondent is negligible.
Reynolds further testified that the New York Central Railroad exercises no direc-
tion, supervision or control over the services rendered by Respondent. Further, that
Respondent has no collective-bargaining agreements with railroad unions and no
employees who belong to railroad unions. On the contrary, it has contracts with
the Teamsters Union and has employees who belong to the Teamsters Union. It
also appears from Reynolds' testimony that Respondent uses its drivers and helpers
interchangeably on all its services including its mail service.
CONCLUSION
The Board has held 2 that while motor line-haul operations of a railroad are
regulated under the Interstate Commerce Act 3 in the same manner as those of non-
railroad motor operators, motor terminal or railhead pickup and delivery services
are regulated indirectly as part of railroad transportation and are subject to the pro-
visions of the Railway Labor Act.4 Thus, they come within the jurisdiction of the
National Mediation Board.
In my opinion, the evidence herein (while not as clear as it might be) shows that
all except a minuscule part of Respondent's services are directly connected with rail
terminal pickup and delivery and rail transportation. I so find. As such I also
find that they are subject to the Railway Labor Act and come within the jurisdiction
of the National Mediation Board rather than the National Labor Relations Board.
Accordingly, I recommend that the complaint herein be dismissed in its entirety.
1 Thus it appears from Reynolds' testimony that the pickup and delivery service for
consignees and consignors Is also in this category as is the rental of equipment which is
essentially composed of the rental of flexivans and the tractors which are rented fully
operated and fully maintained.
2 Northern Pacific Transport Company, 89 NLRB 1561
2 U.S. Code, Title 49, Ch. 8, Sec 201 at seq.
4 U S Code, Title 45, Sec. 151 at seq.