D & T Limousine Co., Inc.

D & T LIMOUSINE CO., INC. 121 D & T Limousine Company, Inc.' and Truck Drivers Local Union 407, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America. Case 8-RC-9068 November 8, 1973 DECISION AND DIRECTION OF ELECTION BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Terry J. Koozer. Following the hearing, and pursuant to Section 102.67 of the National Labor Relations Board Rules and Regulations and Statements of Procedures, Series 8, as amended, the Acting Region- al Director for Region 8-transferred this case to the Board for decision. The parties waived the filing of briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. Upon the entire record in this case, the Board finds: 1. D & T Limousine Company, Inc., hereinafter referred to as D & T or the. Employer, is an Ohio corporation engaged in providing transportation services to Penn Central Railroad exclusively, at the railroad's Collinwood (Cleveland), Ohio, yard. The Employer stipulated that it receives annually in excess of $50,000 for providing services to Penn Central. The Employer asserts that its employees do not come under the jurisdiction of the National Labor Relations Act. The Employer contends that, as it exists solely to furnish services for Penn Central and as its employees spend all of their working time within the railroad yard and Penn Central has authority effectively to demand that the Employer terminate objectionable employees, the employees are under the continuous control of the railroad. Therefore, the Employer argues, these employees come under the authority of the Railway Labor Act and are outside the jurisdiction of the Board.2 The Petitioner, on the other hand, contends that the Employer does not come under the Railway Labor Act because the Penn Central does not own or control the Employer's operation. It further argues that since the employees are hired, fired, directed, compensated, and disciplined by the Employer, and not by the railroad, this matter falls within the jurisdiction of the National Labor Relations Act. The record shows that the Employer, a separately owned company, has a contract with the trustees of Penn Central Transportation Company to provide, as an independent contractor, bus and station wagon transportation services to transport railroad crews within the Collinwood, Ohio, yard 24 hours a day, 7 days a week. The Employer has no other business and does not claim to be a common carrier. The contract between the parties provides in pertinent part that: (1) the Employer will furnish a bus and a station wagon, each with a driver, to be used exclusively at the Collinwood yard to transport the railroad's employees between points within the yard area; (2) it will pay the drivers' wages, taxes, pension benefits, unemployment compensation, so- cial security, and other benefits, holding Penn Central harmless from all such payments and contributions; (3) the drivers are the sole employees of, and subject to, the exclusive control and direction of the Employer, and the work is conducted in the name of the Employer; (4) while on railroad property, the drivers must comply with Penn Central rules and regulations, and the Employer, upon request of Penn Central, must remove from service any employee for any reason deemed objectionable by the railroad; (5) the Employer must furnish and maintain two-way radio communications between the bus and station wagon and Penn Central's dispatchers; (6) Penn Central pays the Employer $127.20 per day for the use of the bus and driver, and $5 per hour for the station wagon and driver; and (7) the Employer must furnish liability insurance on its vehicles and otherwise hold Penn Central harmless from any loss or damage to property and injury or death of persons arising out of the performance of this agreement. The president of the Employer testified that its office is located some 20 miles from the Collinwood yard; that it has no supervisor at the yard; and that employees report directly to the yard, and are solely under the control of the Penn Central dispatcher during their working hours. One of the drivers testified that the Employer schedules him for work and that when a driver does not report for work the Employer reschedules the other drivers. He also testified that requests for time off or sick leave are directed to the Employer, and that discipline and grievances are handled by it. He further testified that, since the Employer's foreman 1 The Employer's name appears as amended at the hearing to "any company which is directly or indirectly owned or controlled by or 2 Sec 1, first, of the Railway Labor Act extends the coverage of that Act under common control with any carrier by railroad ... " 207 NLRB No. 29 122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD quit, there is no supervisor for the Employer at the yard; that, from three to six times a week, an official of the Employer either comes to the yard to check on the operation or telephones the drivers at home; and that the drivers have never received instructions from Penn Central during "dead time" when they have no duties to perform, but that they have received instructions from the Employer to perform mainte- nance work on their vehicles during such time. Because of the nature of the jurisdictional question presented here, we have, as in other cases in the past,3 requested the National Mediation Board to study the record in this case and determine the applicability of the Railway Labor Act to the Employer. In the present case, we are administrative- ly advised by the National Mediation Board that: The National Mediation Board has reviewed the transcript and exhibits submitted with your request, and has determined on the basis of the facts and legal argument that D & T Limousine, Inc. is not a carrier as that term is defined in Section 1, First, of the Railway Labor Act. It does not appear that D & T Limousine, Inc. is either a carrier by railroad or a company which is directly or indirectly owned or controlled by or under common control with any carrier by railroad. On the basis of the facts set forth above, we find that the Employer is engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. Accordingly, we shall assert jurisdiction herein. 2. The Petitioner is a labor organization as defined in the Act and claims to represent certain employees of the Employer. 3. A question affecting commerce exists concern- ing the representation of employees of the Employer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. 4. The parties agree and we find that the following employees of the Employer constitute an appropriate unit for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All drivers located at the Collinwood yard of Penn Central Railway, excluding all office clerical employees, professional employees, guards, and supervisors as defined in the Act.4 [Direction of Election and Excelsior footnote omitted from publication.] 3 Metroflight Airlines, Inc., d/b/a Metro Airlines, 205 NLRB No. 18; unit and further stipulated that casual employees, namely, Ed Wallace and Skyway Aviation, Inc., 194 NLRB 555; International Aviation Services of New an employee named O'Connor, were to be excluded. They also agreed that York, Inc., 189 NLRB 75; Tri-State Aero, Inc., 180 NLRB 60; Lynch Flying employee Jack Sutphin, who works part time at the Collinwood yard. Service, Inc., 166 NLRB 961. should be included. 4 The parties agreed that there are approximately eight employees in the