Transportation Associates of Hawaii, Ltd.

TRANSPORTATION ASSOCIATES OF HAWAII, LTD. Transportation Associates of Hawaii, Ltd. and Hawaii Teamsters & Allied Workers Local 996. Case AO- 161 January 30, 1975 ADVISORY OPINION BY ACTING CHAIRMAN FANNING AND MEMBERS JENKINS, KENNEDY, AND PENELLO On October 15, 1974, Transportation Associates of Hawaii, Ltd., herein called the Employer, filed a petition for an Advisory Opinion, in conformity with Sections 102.98 and 102.99 of the National Labor Relations Board's Rules and Regulations, Series 8, as amended, seeking to determine whether the Board would assert jurisdiction over the Employer's opera- tions. In pertinent part, the petition alleges as follows: 1. There is presently pending before the Hawaii Employment Relations Board, State of Hawaii, Department of Labor and Industrial Relations, herein called the State Board, a petition for election, Case 740030, filed by Hawaii Teamsters & Allied Workers Local 996, herein called the Union, seeking an election among the full-time and regular part-time drivers, dispatchers, bus washers, and mechanics employed by the Employer. 2. The Employer, a surface transportation com- pany, is engaged in the tour business and operates buses in Honolulu, Hawaii. It describes itself as either a public utility or transit system. During the calendar year ending December 31, 1973, the Employer's total volume of sales and services amounted to more than $350,000. During that same period, the Employer locally made sales and ren- dered services in excess of $110,000 to firms which themselves made sales to customers outside the State of Hawaii; and it also purchased goods or services equal to, or in excess of, $50,000 directly from outside the State of Hawaii. 3. The State Board does not appear to have made any formal findings concerning the aforesaid com- merce data. Upon the Employer's information and belief, the data is not disputed by any party. 4. On information and belief the Employer states there is no current representation proceeding involv- ing it pending before the Board, although the Board asserted jurisdiction over it and conducted an election among its employees in Case 37-RC-1818 in January 1973. i Sioux Valley Empire Electric Association, 122 NLRB 92 (1958); Charleston Transit Company, 123 NLRB 1296 (1959). 2 International Longshoremen & Warehousemen's Union, and Local No 13 216 NLRB No. 60 357 5. Although served with a copy of the petition herein, no response thereto has been filed by any interested party. On the basis of the above, the Board is of the opinion: 1. The Employer, a surface transportation com- pany, is either a public utility or transit system enterprise, engaged in the business of providing tour bus service in Honolulu, Hawaii. 2. The Board's current standards for the assertion of jurisdiction over public utilities or transit systems are a gross annual volume of business of at least $250,000.1 3. As indicated above, the Respondent's annual gross volume of business is in excess of $350,000 of which more than $110,000 represented sales and services to local firms which themselves made out-of- state sales. In addition, the Employer had direct inflow equal to, or in excess of, $50,000 by virtue of its purchases of goods and services directly from outside the State of Hawaii. On the assumption that the Employer's operations are either a public utility or a transit system, the Board's standard is met.2 Assuming operations are neither, and that the retail standard is normally applicable to "tour services," here it is clear that the Employer also furnishes such services to enterprises which services are nonretail in nature. J. S. Latta & Son, 114 NLRB 1248 (1955); Bussey-Williams Tire Co., Inc., 122 NLRB 1146 (1959); John J. Harris & Scotty Harris, d/b/a Culligan Soft Water Service, 149 NLRB 2 (1964). As the nonretail operations are not de minimis, the nonretail standard3 applies-see Culligan. Moreover, as a combination enterprise either the nonretail or the retail standard is applicable. See Man Products, Inc., 128 NLRB 546 (1960); Appliance Supply Company, 127 NLRB 319 (1960); Joseph Crowden and Thomas Crowden, A Partnership, d/b/a Indiana Bottled Gas Company, 128 NLRB 1441 (1960). The nonretail standard is met here. Accordingly, we would assert jurisdiction here on the basis that the Employer meets the transit or public utility jurisdictional standard and also would, in any event, meet the nonretail standard if consid- ered a combination enterprise. In his dissent, Member Kennedy stresses the fact that the Employer put an "X" on the commerce questionnaire at "Public Utility or transit system," described its business in general terms on the petition, and in the state proceeding it described its business as being simply "tour." Thus, Member Kennedy argues that we should not issue an Advisory Opinion as we do not know what type of (Catalina Island Sightseeing Lines), 124 NLRB 813 (1959). 3 Siemons Mailing Service, 122 NLRB 81 (1958). 358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD business the Employer operates and the tests Mem- ber Kennedy would apply to a "tour" bus operation are different from those applied to a "transit system." The Employer however does over $110,000 per year of business for local firms such as Greyhound, thus negating the importance of the classification of the Employer as falling in one niche or the other since the Employer would meet our general nonretail standard. Accordingly, the parties are advised under Section 102.113 of the Board's Rules and Regulations, Series 8, as amended, that, on the allegations submitted herein, the Board would assert jurisdiction over the Employer's operations with respect to disputes cognizable under Sections 8, 9, and 10 of the Act. MEMBER KENNEDY, dissenting: I am unwilling to preempt the State of Hawaii from the continued processing of its representation pro- ceeding before the Hawaii Employment Relations Board on the basis of incomplete and inadequate facts. My colleagues are advising the parties to the proceeding already before that state agency that this Board would assert its jurisdiction over the Employer without having sufficient facts to know what is the exact nature of the Employer's business. The majori- ty assumes that either the Employer is a public utility, or it is a transit system. The basis for their alternative conclusion is the commerce questionnaire attached to the petition for an Advisory Opinion. On the questionnaire the employer is asked to: 4 Sightseeing Guides and Lecturers Union Local 20076 of Greater New York, AFL-CIO (A BT Sightseeing Tours, Inc, eta!), 133 NLRB 985 (1961); Walter Carl Ray, et a!, d/b/a Ray, Davidson & Ray, 131 NLRB 433 (1961). 5 The fact that the Resident Office conducted an election almost 2 years Indicate with an X classification(s) which best describe(s) your business. Processing and/or manufacturing (), Wholesaling ( ), ( ), outlet (), Service Organization (), Public Utility or transit system ( ), Newspaper and/or broadcasting station ( ), Other ( ), describe: --- The Employer merely put an "X" by "Public utility or transit system." In its petition, the Employer described its opera- tions only in very general terms. It said: "The general nature of the business involved in the proceeding is that of a surface transportation company operating buses." In the state proceeding, the petition filed by the Union describes in one word the general nature of the business of the Employer as being simply: "tour." Like piecing together the parts of a jigsaw puzzle, my colleagues then conclude that the Employer must be engaged in "providing tour bus service in Honolulu, Hawaii." It is unwise, in my view, for this Board to issue Advisory Opinions on the basis of sketchy facts and conclusionary statements. If the Employer does, in fact, provide a tour bus service similar to a sightseeing business for tourists, then I would apply the $500,000 retail gross volume standard to the Employer's operations.4 Since the Employer's gross for 1973 was $358,000, the Employer's gross volume would not meet the retail standard. However, I am not willing to assume or speculate on what the facts are, or what legal conclusions should be drawn, when this Board has the means for obtaining such facts and the obligation to do so.5 Accordingly, I dissent. ago does not provide a basis for currently asserting our jurisdiction at this time. Indeed, the Employer asserts that , "on the basis of its current standards," the Employer is "in doubt whether the Board would so assert its jurisdictional standards."