Rio Grande Motor Way, Inc.

RIO GRANDE MOTOR WAY, INC. 73 Rio Grande Motor Way, Inc. and International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Local Unions Nos. 961, 146 and 222, Jointly, Petitioner. Case 27-RC-4533 April 15, 1974 DECISION AND DIRECTION OF ELECTION BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held on April 30, 1973, before Hearing Officer Merrill M. McLaughlin. Following the hearing and pursuant to Section 102.67 of the National Labor Relations Board Rules and Regula- tions and Statements of Procedure, Serves 8, as amended, and by direction of the Regional Director for Region 27, this matter was transferred to the National Labor Relations Board for decision. There- after, briefs were filed by the Petitioner and Brother- hood of Railway, Airline, and Steamship Clerks, Freight Handlers, Express and Station Employees, AFL-CIO (herein called Intervenor), which inter- vened at the hearing on the basis of its contract with the Employer covering the employees in question. 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 Hearing Officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. The Board has considered the entire record in this case, including the briefs of the parties, and hereby makes the following findings: 1. At the hearing, the parties stipulated that Rio Grande Motor Way, Inc., is a Colorado corporation engaged in the handling of freight and the transpor- tation of freight within the States of Colorado, Utah, and New Mexico, and that it regularly engages in interstate transportation of freight and regularly receives income in excess of $50,000 annually for the transportation of freight received from customers outside the State of Colorado. However, at the hearing and in its brief, the Intervenor contended that because the Employer is a wholly owned subsidiary of either the Denver and Rio Grande Western Railroad or Rio Grande Industries, Inc., a company which owns the stock of the railroad, the Employer is subject to the jurisdiction of the Railway Labor Act and is not an employer within the meaning of Section 2(2) of the National Labor Relations Act.' Because of the nature of the question presented here, we have in this case, as in other cases in the past,2 requested the National Mediation Board, as the agency primarily vested with jurisdiction under the Railway Labor Act over rail carriers and having primary authority to determine its own jurisdiction, to study the record in this case and determine the applicability of the Railway Labor Act to the Employer. We are administratively advised by the National Mediation Board, under date of February 14, 1974, that: The Board has concluded that Rio Grande Motor Way, Inc. engages as a motor common carrier primarily and preponderantly in the performance of over-the-road, line-haul trucking service which is available to the general public. Therefore, Rio Grande Motor Way, Inc. would not be subject to the Railway Labor Act which provides in pertinent part: "The term `carrier' includes any express company, sleeping-car company, carrier by railroad, subject to the Interstate Commerce 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 transport- ed by railroad, and any receiver, trustee, or other individual or body, judicial or other- wise, when in the possession of the business of any such `carrier' ...." (See 45 USC 151, First) In view of the foregoing, we find that the Employer is not subject to the Railway Labor Act, and, 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. 2. The parties stipulated and we find that the Petitioner and the Intervenor are labor organizations within the meaning of the Act. 3. The Intervenor contends that the petition was filed outside the 90-60-day "open" period preceding I Subsequent to the filing of the briefs herein the Intervenor , by letter had already been referred to the National Mediation Board for its opinion, dated August 15, 1973, indicated that it was willing to consent to the the matter was allowed to proceed through its normal course. National Labor Relations Board 's jurisdiction in this case As the matter 2 New York Central Transport Company, 138 NLRB 1325. 210 NLRB No. 18 74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the expiration of the Intervenor's then existing collective-bargaining agreement. The Intervenor's contract with the Employer covering these employees by its terms became effective on July 1, 1970, and "shall remain in full force and effect until July 1, 1973." The petition was filed on April 2, 1973. Counting April 2, 1973, the date the petition was filed and adding the days up through and including June 30, it is clear that the petition was filed exactly 90 days prior to the termination date of the contract, if the contract expired midnight, June 30, 1973. The Intervenor argues, however, that the phrase "shall remain in force and effect until July 1, 1973" (emphasis supplied) puts the termination date of the contract July 1, 1973, at midnight, thereby requiring a finding that the petition was filed 91 days before the expiration of the contract. We find no merit in this contention. The facts before us clearly show that it was the intention of the Employer and the Intervenor to enter into a 3-year contract and under normal contract interpretations, a 3-year contract expires on the last day of the third year, to wit, in the instant case, June 30, 1973. However, even if we were to accept the Intervenor's contention, we would still find that the petition was timely filed. If we accept midnight, July 1, 1973, as the terminal date, then it is clear that the contract would have a duration of 3 years and 1 day. As such a contract exceeds our rule limiting contracts for bar purposes to 3 years we find that the petition was filed 90 days prior to the termination date (June 30, 1973) of the first 3-year period of the contract and that the petition was accordingly timely filed.3 Accordingly, in view of the foregoing conclusions, we find that a question affecting commerce exists concerning the representation of employees within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. 4. In accordance with the stipulation of the parties at the hearing, the following employees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All office clerical workers, office machine operators, office messengers and parts room clerks including general bookkeepers, the chief rate clerks at Denver and Salt Lake City, the assistant chief rate clerk, Denver, the Chief Clerk, Denver Shop, the secretary to the comptroller, secretary to manager of transportation, secretary to terminal managers at Denver and Salt Lake City employed by the Employer in the States of Colorado, New Mexico and Utah, but excluding the payroll accountant, travel agents who serve to relieve terminal managers in their absence, salesmen and solicitors, the secretary to the president and general manager, the secretary to the traffic manager, all other confidential employ- ees, salesmen, guards, professional employees, supervisors and all other employees. [Direction of Election and Excelsior footnote omitted from publication.] 3 Penn-Keystone Realty Corp., 191 NLRB 800, 802.