D & T Limousine Service

859 320 NLRB No. 80 D & T LIMOUSINE SERVICE 1 Rather than seeking referral, the Employer moves for dismissal of the petition based on its legal arguments. Given our conclusions, the motion is denied. 2 D & T’s argument that the 1973 case was not fully adjudicated is without merit. In fact, D & T participated in the hearing that fully developed the record that NMB considered, and which we later con- sidered. We do not agree with D & T’s contention that whether there was an election in 1973 has a bearing on our disposition of the cur- rent case. D & T Limousine Service, Inc. and United Trans- portation Union, Petitioner. Case 3–RC–10290 February 26, 1996 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS BROWNING AND COHEN On June 28, 1995, the Union filed a petition seeking to represent certain employees operating out of the Employer’s Selkirk, New York location. The Employer moved to dismiss the petition claiming that it is a car- rier under the Railway Labor Act (RLA) and therefore the National Labor Relations Board does not have ju- risdiction under the National Labor Relations Act. After a hearing, the Regional Director for Region 3 transferred this proceeding to the Board. Thereafter, the Petitioner and the Employer filed briefs with the Board. The Board, by a three-member panel, has reviewed the hearing officer’s rulings and finds that they are free from prejudicial error. They are affirmed. On the entire record in this proceeding, the Board finds: 1. The Employer (D & T) is an Ohio corporation engaged in providing transportation services to the railroard industry. The Employer’s principal place of business is in Cleveland, Ohio, and it has various fa- cilities located throughout the United States, including one in Selkirk, New York. During calendar year 1994, the Employer realized gross revenues in excess of $500,000 and provided services valued in excess of $50,000 directly to points located outside the State of New York. Annually, the Employer receives in excess of $50,000 for providing services to Conrail, which is an instrumentality of interstate commerce. The Employer argues that the Board may not exer- cise jurisdiction over it because D & T is covered by the RLA and is therefore under the jurisdiction of the National Mediation Board (NMB). We do not agree. In United Parcel Service, 318 NLRB 778 (1995), we explained that for nearly 40 years ‘‘the Board has fol- lowed a general practice of referring cases to the NMB when a party raises a claim of arguable RLA jurisdic- tion.’’1 We noted, however, several exceptions to this policy, including cases that presented ‘‘jurisdictional claims in factual situations similar to those where the NMB has previously declined jurisdiction.’’ Id. We also noted that when we have previously exercised ju- risdiction, we will not thereafter refer a case to NMB unless the employer can establish that its operations have ‘‘undergone a jurisdictionally significant change.’’ Id. In a 1973 case before us, D & T claimed that it ex- isted solely to furnish services to Penn Central Rail- road, that D & T employees were under the continuous control of the railroad, and that these employees there- fore were covered by the RLA. We referred the ques- tion of jurisdiction to the NMB. The NMB found that D & T was not covered by the RLA and declined to assert jurisdiction, stating as follows: The National Mediation Board has reviewed the transcript and exhibits submitted with your re- quest, 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 ap- pear that D & T Limousine, Inc. is either a carrier by railroad or a company which is directly or in- directly owned or controlled by or are under com- mon control with any carrier by railroad. [D & T Limousine Co., 207 NLRB 121, 122 (1973).] Therefore, based on record evidence presented to us,2 we found that D & T was an employer under our Act and asserted jurisdiction. D & T, supra, 207 NLRB 121. Thus, as explained above, under United Parcel Service, the burden is on D & T to show that the fac- tual situation has undergone a jurisdictionally signifi- cant change since 1973. The Employer presents the following in support of its argument that its operations and relationship with the railroads has changed significantly since 1973. (i) In 1973, D & T had a contract with one railroad, and it now has contracts with other railroads. That D & T has contracts with other railroads now, or that it is much larger now, is not in itself a jurisdic- tionally significant change. D & T still performs the same service—shuttling railroad employees to their work—that it performed in 1973. (ii) The current contracts allow the railroads to exer- cise significantly more control over D & T’s oper- ations than the 1973 contract allowed. Contrary to D & T’s assertion, the record indicates that currently the railroads exercise similar or less con- trol than in 1973. As is the case today, D & T employ- ees in 1973 were required to comply with the rail- road’s rules and were often dispatched by railroad em- ployees, and D & T was required to provide liability insurance as well as furnish and maintain a two-way radio for every van. 860 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 3 In addition to arguing that it is a carrier covered by the RLA, D & T argues that we cannot assert jurisdiction because a joint em- ployer relationship exists between it and the railroads it services, and the latter entities are subject to the RLA. We find no merit in this contention. In determining whether to assert jurisdiction over an em- ployer with close ties to an exempt entity, ‘‘the Board will only con- sider whether the employer meets the definition of ‘employer’ under Section 2(2) of the Act, and whether such employer meets the appli- cable monetary jurisdictional standards.’’ Management Training Corp., 317 NLRB 1355, 1358 (1995). Having found above that D & T is a statutory ‘‘employer’’ and that it meets the applicable com- merce standard, we conclude that the Employer is subject to our ju- risdiction. Member Cohen dissented in Management Training Corp., and thus he would not apply that precedent to the instant case. That is, if the exempt entity (the railroads) controlled the essential terms and con- ditions of employment, and D & T controlled only other terms and conditions, Member Cohen would not assert jurisdiction over D & T. D & T does have control over essential terms and conditions, however, and thus Member Cohen would assert jurisdiction over D & T. 4 The parties disagree on certain unit scope and unit placement issues. In some respects, it appears that D & T’s autonomy has increased rather than diminished. D & T admits that it is under no contractual obligation to fire em- ployees according to the railroads’ wishes. In contrast, in 1973 D & T was contractually bound to remove em- ployees at the railroad’s request for any reason. D & T’s reorganization, which is detailed below, also sug- gests significant autonomy. (iii) Since 1973, D & T has undergone a reorganiza- tion, which has centralized control in the Cleveland of- fice. Again, contrary to the Employer’s assertion, rather than showing a jurisdictionally significant change, the record indicates that the Employer retains substantial control over its operations. For example, after the reor- ganization, corporate officers in the Cleveland office exercise control over day-to-day operations, such as in- vestigating a railroad’s complaint about a particular employee and making the final decision about the hir- ing of all applicants. Further, the Employer’s own con- tentions belie its argument that D & T’s operations are controlled by the railroads. For example, the Employ- er’s brief contains the following assertions: The Corporate Officers Promulgate And Imple- ment D&T’s Corporate Policies For Its Entire Op- erations. The Corporate Officers Establish D&T’s Hiring Policies and Direct The Hiring Process For Its En- tire Workforce With Assistance From The Cleve- land Staff. The Corporate Officers Establish Disciplinary Policies And Direct The Discipline Process, Which May Include Terminating Employees, For Its Entire Workforce. In sum, we find that the Employer has failed to show that the factual situation today differs from the factual situation in 1973 in a jurisdictionally significant way. Accordingly, we find that D & T is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the NLRA and that it will effec- tuate the policies of the Act to assert jurisdiction.3 2. We shall remand the case to the Regional Direc- tor for resolution of any unresolved issues and to take further appropriate action.4 ORDER It is Ordered that this proceeding is remanded to the Regional Director for Region 3 for further appropriate action consistent with this decision. CHAIRMAN GOULD, concurring. For the reasons set forth in my dissenting opinion in Federal Express Corp., 317 NLRB 1155 (1995), I would eliminate the Board’s general practice of refer- ring cases involving RLA jurisdictional claims to the NMB for an initial ruling. On the facts of this case, I find there is ample basis for the Board’s assertion of jurisdiction. Accordingly, I concur in my colleagues’ decision to assert jurisdiction over the Employer and to remand the case to the Regional Director for resolution of any unresolved issues and to take further appro- priate action.