Chicago Motor Coach Co.

In the Matter Of CHICAGO MOTOR COACH COMPANY and TRANSPORT WORKERS UNION OF AMERICA, C. I. 0 Case No. 13-R-2557.-Decided June 25,1945 Messrs. Lee A. Freeman, Irvin Rooks, and Charles K. Bobinette, of Chi- cago, Ill., for the Company. Mr. Harry Sacher, by Mr. Samuel M. Sacher, of New York City, for the C, I. O. Messrs. Thomas Rosenberg and 1. Harvey Levinson, of Chicago, Ill., for the Fraternity. Miss Katharine Loomis, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon a petition duly filed by Transport Workers Union of America, C. I.0 , herein called the C. 1. 0., alleging that a question affecting commerce had arisen concerning the representation of employees of Chicago Motor Coach Company, Chicago, Illinois, herein called the Company, the Na-. tional Labor Relations Board provided for an appropriate hearing upon clue notice before Robert R. Rissman, Trial Examiner. Said hearing was held at Chicago, Illinois, on October 18, 19, and 20, 1944. After the close of the hearing the Company moved to reopen the record to adduce further evi- dence, For the purpose of amplifying the record with respect to the juris- dictional issue, the record was reopened by order of the Board dated Feb- ruary 15, 1945. A further hearing was held for this purpose at Chicago, Illinois, on April 4 and 5, 1945, before Robert R. Rissman, Trial Examiner. The Company, the C. I. 0., and the Chicago Motor Coach Employees Fra- ternity, herein called the Fraternity, appeared and participated at both hear- ings. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence hearing on the issues. The Company moved to dismiss the C I O's petition on various grounds, 62 N. L. R. B., No 109. 890 CHICAGO MOTOR COACH COMPANY 891 one of which was that the Company is not engaged in commerce or activi- ties affecting commerce, within the meaning of the Act. For reasons set forth in Section 1, infra, the motion, insofar as it it predicated on this ground, is granted. The Trial Examiner's rulings made at the hearings are free from prejudicial error and are hereby affirmed. All parties were afforded an opportunity to file briefs with the Board.' Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT I THE 1 JSINESS OF THE COMPANY Chicago Motor Coach Company is an Illinois corporation having its offices and place of business in Chicago , Illinois. During 1943 the Company's purchases of materials and equipment amounted to $958 ,000. Of this amount, $444,053.68 represents 5,000,000 gallons of gasoline and diesel fuels shipped to the Company from points outside Illinois ,- and $52,900 represents other items shipped to it from points outside that State.' The Company ships no products out of the State, all of the materials purchased being consumed in the operation of its business. The first issue which we must determine is whether or not we have be- fore us a representation dispute "affecting commerce " as defined in Section 2 (7) of-the Act . It will be noted that the business of this Company is trans- portation . Under a franchise from the Illinois Commerce Commission, it operates a fleet of passenger busses between points entirely within the city of Chicago. Since none of the routes in which service is furnished by the Company extends across the boundaries of the State of Illinois , it is clear that the Company is not engaged in interstate transportation. An attempt was made, however, to show that its operations affect inter- state transportation since evidence was introduced to show that passengers using three suburban railroads obtain tickets for the bus company at a re- duced rate . This commutation ticket arrangement , however , is available only to passengers whose trip originates at suburban stations within the State of Illinois. The schedule of rates filed with the Illinois Commerce Commission is so limited The rate was filed with only the State comrnis- sion and had it involved an interstate movement the tariff would have had to he filed with the Interstate Commerce Commission of the United States It is therefore apparent that the operations of these lines have been the con- cern solely of a State regulatory body The record also shows that the 1 After the close of the hearings , the Amalgamated Association of Street , Eletcric Railway and Motor Coach Employees of America , A. F. L , herein called the Amalgamated , filed a petition to inter vene for the purpose of being placed on the ballot in case an election should be ordered The C I 0 filed a memorandum in opposition to the Amalgamated's petition In view of our dismissal of the case on the jurisdictional ground, we find it unnecessary to rule on the Ammalgamated ' s petition Orders for the gasoline and diesel fuels were placed in Chicago 3 Orders for these items were placed outside Illinois 892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Company, in addition to carrying revenue passengers, also carries persons who obtain transfers issued by two other railroad traction companies in Chicago.' This arrangement was put into effect by order of the Illinois Commerce Commission and is no indication that the three companies are under com- mon ownership or management. On the contrary, the record is clear that they are not. This order of the Illinois Commerce Commission, in combina- tion with evidence brought out in the record that the Company has filed rates with this Commission but not with the Interstate Commerce Commis- sion, emphasizes the local character of the Cmripany's operations. This is particularly significant in view of the broad powers vested in the Interstate Commerce Commission. In any case, this Board should be very reluctant to construe arrangements brought about by the adjudication of State and local governments as having impact on interstate transportation when the agency primarily invested with such authority by the Federal Govern- iucnt has not taken jurisdiction We have recognized, however, that there may be interruptions to purely local transportation service which ma^%impose burdens upon the production of goods for interstate commerce Such situations may arise not only where connecting carriers are involved, but where the workers in factories pro- ducing goods for interstate shipment depend entirely upon a given local transportation system to reach their places of employment. This was the consideration which led us to take jurisdiction over the Baltimore Transit Company ' As we noted in that case, important factories and shipbuilding companies engaged in the production of goods for commerce or in the prose- cution of the war would have been faced with immediate curtailment of their production schedules had their employees been deprived of the trans- portation facilities of the traction system because of a strike of the trolley and bus workers. Similar factors caused tis to assume jurisdiction over the Chicago Surface Lines The facts of the instant case are plainly distinguishable. To begin with, this Company carries only a small percentage of the passengers utilizing the local transit lines. Its routes run primarily along park boulevards and parkways. The streetcar system of the Chicago Surface Lines is the most comprehensive serv`Ice in the city, whereas the service of the Company is 4It does not appear that the lines of these two companies, the Chicago Rapid Transit Company and the Chicago Surface Lines, extend outside the State s N L R B v Baltimore Transit Company , 140 F (2d) 51 (C C A 4 ), cert den 321 U S 795 There it was pointed out that the Baltimore Transit Company and its subsidiary , the Baltimore Coach Company , operate "the street railway and bus transportation system" in Baltimore and its environs , consisting of "2 bus lines and some thuty street car lines, including three trackless trolleys, which serve practically every district in the city " While, as the Court found in that case, "a tie up of this means of transportation would in large measure paralyze the life of the city and greatly hinder and impede the flow of the interstate commerce in which the people of the city are engaged ," no such conclusion can be drawn with iegaid to the Company's operations in Chicago a Matter of Chicago Surface Lincs , 58 N L. R . B 1140. CHICAGO MOTOR COACH COMPANY 893 limited both with respect to the number of people to whom it is available and the areas served. The cars of the Chicago Surface Lines are available within three-eighths of a mile to 98 percent of Chicago's population and to 87 percent of its area, while the Company's busses are available within three- eighths of a mile to only 48 percent of the population and 25 percent of the area. The elevated and subway lines of the Chicago Rapid Transit Company are available within a like distance to 19 percent of the city's area. It ap- pears from the record that the number of revenue passengers actually car- ried by the Company in 194,' is relatively small when compared with the total number of such passengers carried in that year by all three Chicago carriers The Chicago Surface Lines carried 79 67 percent, the Chicago Rapid Transit Company 13.72 percent, and the Company 6 61 percent of the total number of passengers. Furthermore, since the routes of the Com- pany are paralleled within one-half mile or less by routes of Chicago's other major systems,' it is evident that few, if any, areas in Chicago are entirely dependent on the Company's operations The Company, the Chicago Surface Lines, and Chicago Rapid Transit Company serve industrial areas as well as the residential and business sec- tions of the city The Company's transportation service is available within three-eighths of a mile to 20 percent of that area of the city devoted to heavy industry But the cars of the Chicago Surface Lines are also available within a like distance to 100 percent of that area and those of the Chicago Rapid Transit Company to 13 percent of the area While is it likely that the Com- pany does serve some industrial passengers. because of the comprehensive service offered in this area by the Chicago Surface Lines, the evidence fails to show that any industrial workers are entirely dependent on the Com- pany's busses Moreover, it is important to note that in December 1942, pursuant to a curtailment order of ODT, the Company discontinued service oil three lilies operating within or adjacent to industrial areas. while preserving serv- ice in areas not industrial The discontinuance of these routes in industrial areas was prompted by the small amount of traffic carried Although certain transactions incidental to the business of the Company may not he wholly unrelated to commerce,' we believe that the effect of any The number was 69,189,952 9including, in addition to the Chicago Surface Lines and Chicago Rapid Transit Company, the Illinois Central Suburban Railway, a carrier whose lines are used by Chicago residents for trans- portation between points located within the city 0As has been noted , the Company purchases its gasoline and ceitam other items from points outside the State While the flow of such materials across State lines is a salient factor with respect to manufacturing and distributing mdustiies which are engaged in the business of conveying or handling materials in the flow of inteistate commence, this aspect of the case is only incidental to a business devoted entirely to transportation of passengers Should such a factor be given controlling weight it would be difficult to conceive of even the smallest bus line or taxi company which would be outside the scope of the Act unless it appeared to be located in one of the petroleum producing States 894 DECISIONS OP NATIONAL LABOR RELATIONS BOARD labor dispute in this Company would be too remote to justify taking juris- diction in this case. We shall accordingly dismiss the petition." ORDER Upon the basis of the foregoing findings of fact and pursuant to Section 9 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the petition for investigation and certification of representatives of employees of Chicago Motor Coach Company, Chicago. Illinois, filed by Transport Workers Union of America , C. I. 0., be , and the same hereby is, dismissed. CHAIRMAN MILLIS took no part in'the consideration of the above Discus- sion and Order. 10 As the Supreme Court recently said, "Lines are not the worse for being narrow if they are drawn on rational considerations." See 10 East 40th Street Building, Inc. vs. Charles Callus, Samuel Said, Louis Saggese, et al, 13 LW 4516 (June 12, 1945 ). In that case, the Court ruled that maintenance employees, window cleaners, etc., employed by the owner and manager of a 48-story building leased to more than 100 tenants, some of whom were engaged in interstate commerce, were not "employees" as defined by the Fair Labor Standards Act of 1938 . In its opinion , written by Mr. Justice Frankfurter , the Court noted that in Borden Co. v. Borella, a case it had decided the same day, it had held the Fair Labor Standards Act to have been properly invoked on behalf of maintenance employees of a building owned by an interstate producer and predominantly occupied for its offices