Yellow Cab and Baggage Co.

In the Matter of YELLOW CAB AND BAGGAGE COMPANY and INTER- NATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, STABLEMEN AND HELPERS, LOCAL UNION #762, AFFILIATED WITH THE AMERICAN FEDERATION OF LABOR Case No. C-1098.-Decided November 10, 1939 Passenger and Baggage Transportation Industry-Complaint: dismissed with- out prejudice for lack of evidence to sustain the jurisdiction of the Board. Mr. Arthur R. Donovan, for the Board. Swarr, May d Royce, by Mr. David W. Swarr, Mr. Albert E. May, and Mr. A. E. Royce, of Omaha, Nebr., for the respondent. Mr. David W. Weinberg, of Omaha, Nebr., and Mr. Herbert S. Thatcher, of Washington, D. C., for the Union. Mr. Louis Cokin, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by International Brotherhood of Teamsters , Chauffeurs, Stablemen and Helpers, Local Union #762, herein called the Union , the National Labor Relations Board, herein called the Board, by the Regional Director for the Seventeenth Region (Kansas City , Missouri ), issued its complaint dated September 22, 1938, against Yellow Cab and Baggage Com- pany, Omaha, Nebraska, herein called the respondent , alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce , within the meaning of Section 8 (1), (3), and ( 5) and Section 2 (6) and (7) of the National Labor Rela- tions Act, 49 Stat. 449 , herein called the Act. Copies of the complaint and accompanying notice of hearing were duly served upon the respondent and upon the Union. Concerning the unfair labor practices, the complaint alleged, in substance, ( 1) that on or before June 15, 1937, and thereafter, al- though a majority of the respondent 's employees within an appropri- ate unit had designated the Union as their representative for purposes 17 N. L. R. B., No. 38. 469 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of collective bargaining , the respondent refused to bargain collec- tively with the Union as the exclusive representative of such em- ployees; (2) that on June 27 , 1937, the respondent discharged or locked out and refused to continue the employment of 120 employees of the respondent for the reason that they were members of the Union and had engaged in concerted union activities and that by such dis- charges and refusals to reinstate, the respondent discouraged mem- bership in the Union ; and (3 ) that by the above and various other acts, the respondent interfered with, restrained , and coerced its em- ployees in the exercise of the rights guaranteed in Section 7 of the Act. On September 28; 1938, the respondent filed with the Regional Director a motion for additional time to answer the complaint and a motion for an extension of the time of hearing. On September 29, 1938, the motions were denied by the Regional Director. The re- spondent filed an answer dated October 3, 1938, contesting the Board's jurisdiction of, the subject matter, denying that it had engaged in unfair labor practices, and alleging affirmatively that it had bar- gained collectively with the Union. Pursuant to notice, a hearing was held at Omaha, Nebraska, on October 6, 7, 8, 10, 11 , 12, 13, 14, and 17, 1938, before Charles E. Persons, the Trial Examiner duly designated by the Board. The Board, the respondent, and the Union were represented by counsel and-,participated in the hearing. Full opportunity to be-hoard, to examine and cross-examine witnesses , and to introduce evidence bear- ing on the issues was afforded all parties. At the commencement of the hearing, counsel for the respondent moved to make the complaint more definite and certain. The motion was denied. At the close of the Board's case and at the close of the hearing, counsel for the re- spondent moved to dismiss the complaint on various grounds. The motions were denied. During the course of the hearing the Trial Examiner made several rulings on other motions and on objections to the admission of evidence. The Board has reviewed all the rulings of the Trial Examiner and finds that no prejudicial errors were com- mitted. The rulings are hereby affirmed. On October 26, 1938, the respondent filed memorandum of points and authorities with the Trial Examiner. On December 27, 1938, the Trial Examiner issued his Intermediate Report, copies of which were duly served upon the respondent and upon the Union, in which he found that the respondent is engaged in commerce within the meaning of the Act and had engaged in and was engaging in the unfair labor practices alleged in the complaint. He accordingly recommended that the respondent cease and desist from its unfair labor practices and that it offer full reinstatement with back pay to YELLOW CAB AND BAGGAGE COMPANY 471 117 employees named in the complaint. On January 16, 1939, the respondent filed exceptions to the Intermediate Report and requested oral argument before the Board. On March 3, 1939, the respondent filed a. brief in support of its exceptions. Pursuant to notice duly served upon the respondent and the Union, a hearing for the purpose of oral argument was held before the Board on September 3, 1939, in Washington, D. C. The respondent and the Union were represented by counsel and participated in the argument. The Board has considered the respondent's exceptions to the Inter- mediate Report and, to the extent indicated below, sustains them. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT The respondent is a Nebraska corporation engaged in the transpor- tation of passengers and baggage in the city of Omaha, Nebraska, and its environs. It operates under licenses granted by the city of Omaha and under certificates of convenience and necessity granted by the Nebraska Railway Commission. The respondent also con- ducts a "U-Drive-It-Yourself" business, renting out automobiles to individuals. During 1937 the respondent operated 175 cabs and 3 baggage trucks and offered for rental 7 "Drive Yourself" cars. In the same year its gross revenue amounted to $320,359.21 of which $16,362.80 represented revenue received from baggage transfer. The respondent purchases all of its cabs, equipment, and gasoline in Omaha, although these supplies are produced outside the State. During 1937, 241/3 per cent of the trips made by the respondent's cabs were made to or from the 3 railroad stations located in Omaha. The record, however, does not show the number or proportion of pas- sengers who were transported to or from the trains. The respondent also has a contract with the Chicago, St. Paul and Minneapolis Rail- road and the C. B. & Q. R. R. pursuant to which it transports pas- sengers between two railroad stations in Omaha and accepts ticket stubs therefor redeemable by these railroads. Less than 1/110 of 1 per cent of the respondent's gross revenue, or less than $500 a year, is derived from trips made pursuant to these contracts. The respondent also carries passengers to Council Bluffs, Iowa, and to a narrow strip of land adjacent to Omaha but within the State of Iowa. In addition the respondent's cabs carrying passengers to the Omaha. Airport in Nebraska usually cross the above-described strip of land in Iowa. All the trips made through or to points within the State of Iowa account for less than 1/1o of 1 per cent of the respond- ent's gross revenue, or less than $500 a year. 247354-40-vol. 17 . 1 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Although the respondent transports baggage to and from and be- tween the railroad stations in Omaha there is no showing in the record of the amount of the respondent's revenue derived from this part of its baggage transfer business or the points of origin or desti- nation of the baggage. thus transferred. The record is silent with respect to the "U-Drive-It-Yourself" business conducted by the respondent. The facts are not sufficiently developed in the record to afford a basis for finding that the operations of the respondent affect com- merce, within the meaning of the Act. We shall therefore dismiss the complaint in its entirety. The dismissal of the complaint, being for lack of evidence to sustain the jurisdiction of the Board, will be without prejudice. ORDER Upon the basis of the foregoing findings of fact and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the complaint against Yel- low Cab and Baggage Company, Omaha, Nebraska, be, and it hereby is, dismissed without prejudice.