Texas Electric Bus Lines

TEXAS ELECTRIC BUS LINES 67 .TEXAS ELECTRIC Bus LINES and BROTHERHOOD OF RAILROAD TRAINMEN, PETITIONER . Case No. 16-RC. 955. July 8,1952 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 Leventhal, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed.' 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 [Chairman Herzog and Members Houston and Murdock]. Upon the entire record in this case, the Board finds : 1. The Employer asserts, first, that it is subject to the Railway Labor Act, which would preclude its being subject to the jurisdiction of the Board. The Employer asserts, alternatively, that it is not engaged in interstate commerce or, if it is so engaged, its operations are not such that the Board's assertion of jurisdiction would effectuate the purposes of the Act. The Employer is a Texas corporation incorporated in 1949. It is engaged solely in operation of a motor vehicle bus line between Waco and Dallas, Texas, a distance of approximately 95 miles. There are stops at various intermediate points, only two of which-those at Waxahachie and Italy--are within towns or cities. All the stock of the Employer is owned by Waco Transit Company, also a Texas corporation, which acquired it in 1949 by purchase from the Texas Electric Railway Company.2 The Employer's gross revenue in 1951 was approximately $264,000. It customarily buys all its supplies within the State of Texas;, except for occasional purchases of replacement parts from the Ohio manu- , We find no prejudicial error in the hearing officer's rejection of the Employer's proffer of evidence purporting to show that Emory Harris, who signed and filed the petition, was without authority to represent the Petitioner, because his commission to represent the Petitioner Is organizing the employees of the Employer was limited to 10 days and had expired before the filing of the petition We are satisfied that Harris, who appeared for the Petitioner at the hearing, Is such an authorized representative. We likewise find no merit in the Employer's motion to dismiss the petition on the ground that Harris was without authority to represent the Petitioner. The motion Is denied. A further motion to dismiss on the ground of surprise was referred to the Board and Is denied, for reasons discussed in paragraph 4, below, in connection with the appropriate unit. The Waco Transit Company also owns and operates a transportation system in the city of Waco, which It purchased in 1946 from the Texas Electric Railway Company. The Employer's president is vice president of Waco Transit Company. ' The gasoline and oil used by the Employer originates at the Texas refineries of Gulf Oil Corporation. In 1951 the Employer bought approximately $5,000 worth directly from Gulf and an unspecified amount from Waco Transit which the latter had purchased from Gulf. In 1951 the Employer spent approximately $6,000 for tires obtained from the Good- year Rubber Company at Fort Worth. 100 NLRB No. 3. 227860-53-vol. 100-6 68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD facturer of the busses it uses.4 The Employer was unable to estimate the amount of these - out-of-State purchases, if any, in 1951, but stated that such purchases never amounted to more than a negligible percentage of total expenditures. The Employer operates under a certificate from the Interstate Com- merce Commission, as well as a permit from the Railroad Commission of the State of Texas. It has its own terminal at Waco, but at Dallas it leases space in a terminal owned by the Terminal Bus Association, an organization having several interstate bus companies among its members. Through arrangements with other bus lines, the Employer sells tickets to any out-of-State point to which a passenger desires transportation.5 The Employer estimates its revenue from such sales in 1951 at about $7,000. The Board does not have jurisdiction over an employer subject to the Railway Labor Act." However the record does not sustain the Employer's contention that it is subject to that Act. In support of this contention the Employer relies solely on the fact that in 1938 the District Court for the Northern District of Texas held that the Texas Electric Railway Company was so subject and its decision was affirmed in 1940 by the Supreme Court of the United States.7 At the time of that decision the Texas Electric Railway Company owi ed and operated an interurban electric railway line between Dallas and Waco, the route now serviced by the Employer's motor busses, and similar lines between Dallas and two other towns in Texas, Corsicana, and Denison." The court's decision that Texas Electric Railway was subject to the Railway Labor Act was based entirely on certain facts as to the carriage of freight over these interurban lines in regu- lar freight cars drawn by Texas Electric Railway's locomotives or by its work cars, and the interchange of such freight cars with steam railroads 9 for transportation to or from points on their- lines. On the basis of such facts, the court concluded that the Texas Electric Railway was operating as a "part of a general steam-railroad system of transportation," thus making its operations subject to the Railway Labor Act and removing them from that Act's exemption of inter- 4 The Employer has not bought any busses since its initial purchase of busses in 1949 .from an undisclosed source. , All ticket sales made at Dallas for lines using the Association facilities, whether mem- ber lines or tenants , are handled by employees of United Bus Terminal of Dallas, Inc., ,the company through which the Association operates the terminal . Rentals of the Dallas facilities are based on fixed percentages of ticket sales. e See definitions of "employer " and "employee," Section 2 (2) and (3) of the National Labor Relations Act. 7 Texas Electric By. Co . v. Eastus, 25 Fed. Supp. 825, affirmed 308 U. S. 512; rehearing denied 308 U. S. 637. 8 Texas Electric Railway at that time also owned and operated street lines wholly within the towns of Waco (this system , as noted above was sold in 1946 to Waco Transit ), Corsi- cana, Waxahachie , Denison, and Sherman , Texas. 8In 1937 the Texas Electric Railway interchanged with steam railroads 931 cars per month, 638 of which were intrastate and 293 of which were interstate. TEXAS ELECTRIC BUS LINES 69 "urban electric railways.10 The record in this proceeding establishes that the Employer's present operations have none of the characteris- tics upon which the court's decision as to its predecessor was predi- cated, but that it is a motor bus line subject to the regulation of the Interstate Commerce Commission." Accordingly Section 2 (2) and (3) of the National Labor Relations Act does not remove the Em- ployer from the jurisdiction of the Board. Upon the foregoing facts, and in accordance with the Board's an- nounced policy of asserting jurisdiction over public utilities and transit systems whose operations are more than de minimis, we find that the Employer's operations affect commerce within the meaning of the Act, and that it will effectuate the policies of the Act to assert jurisdiction in this case.12 4. In its first amended petition the Petitioner sought a unit com- prising all bus drivers, agents, and mechanics. At the hearing, over the Employer's objection, Petitioner was permitted to amend this ,petition by limiting the unit to bus drivers. The Employer then moved to dismiss the amended petition on grounds of surprise. As the Employer had full opportunity to litigate at the hearing all issues raised by the amendment, the motion is denied.13 The Employer contends that the most appropriate unit would com- prise all its employees, including the 20 employees classified as bus drivers, 2 driver-mechanics, 2 mechanics, 1 mechanic bus-cleaner, 1 .bus-cleaner, 1 bus-cleaner porter, 2 office and clerical employees, 1 ticket agent and 1 assistant ticket agent. It apparently would also regard as appropriate a unit limited to hourly paid employees, i. e., all employees except the office and clerical workers, the ticket agent, and the assistant ticket agent. It further contends that to be appro- priate, any unit which includes drivers must also include mechanics because 2 of the drivers also perform mechanics' duties. The Board has heretofore found that a unit limited to bus drivers may be appropriate,14 and no facts appear in this case to justify a different conclusion. The employees classified as driver mechanics do mechanics' work only when the regular mechanics are off duty or otherwise absent. As their principal function is identical with that of the other drivers, we shall include them in the unit.15 As the regular mechanics do no driving we find no merit in the Employer's conten- tion that they should be included in the unit. 1° 45 USCA Section 151. 1149 USCA Section 301 et seq 12 W. C. King d/b/a Local Transit Lines, 91 NLRB 623; Columbus Celina Coach Lines, et at., 97 NLRB 777. 33 Ecko Products Company, 72 NLRB 1058. 14 Gate City Transit Lines, Inc, 81 NLRB 79. 11 The Ocala Star Banner, 97 NLRB 384. 70 DECISIONS OF NATIONAL LABOR RELATIONS BOARL The Petitioner would exclude two part-time drivers who work 7 or 8 hours a day for other employers and 2 or 3 hours daily for the Employer. As they are regular part-time employees we shall, in accordance with our usual practice, include them in the unit 16 We find that the following employees of the Employer constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. All bus drivers, including part-time drivers and driver mechanics, but excluding all other employees and all supervisors as defined in the Act. [Text of Direction of Election omitted from publication in this volume.] 19 Evening News Publishing Company, 93 NLRB 1355. STERCHI BROS. STORES, INC. and CHAUFFEURS AND SALES DRIVERS, LOCAL UNION No. 402, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, A. F. OF L., PETITIONER. Case No. IO-RC-1824. July 8, 1952 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 Paul L. Harper, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. 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 [Chairman Herzog and Members Styles and Peterson]. 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 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. ' The Employer's motion to dismiss the petition for lack of jurisdiction was referred by the hearing officer to the Board. The Employer is a multistate enterprise , operating retail stores in Georgia , Alabama, Florida, North Carolina , and Kentucky. It was stipulated that during 1950 and 1951 out-of-State purchases for the Alabama stores approximated $178,500 in value. We find, therefore, that the Employer is engaged in commerce and that it will effectuate the policies of the Act to assert jurisdiction in this case, The Borden Co., 89 NLRB 227. 100 NLRB No. 15.