Continental Bus System, Inc. v. NLRB, 7198.

• Decision Date: 05 December 1963
• Docket Number: No. 7198.,7198.
• Citation: 325 F.2d 267
• Parties: CONTINENTAL BUS SYSTEM, INC., d/b/a Continental Rocky Mountain Lines, Inc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

325 F.2d 267 (1963)

CONTINENTAL BUS SYSTEM, INC., d/b/a Continental Rocky Mountain Lines, Inc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 7198.

United States Court of Appeals Tenth Circuit.

December 5, 1963.

Edward H. Sherman, Denver, Colo. (Alfred Crager, Dallas, Tex., on the brief), for petitioner.

Herman Levy, Atty., NLRB (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, NLRB, and James C. Paras, Atty., NLRB, on the brief), for respondent.

Before PHILLIPS, PICKETT and BREITENSTEIN, Circuit Judges.

PHILLIPS, Circuit Judge.

The Continental Bus System, Inc.,¹ by petition seeks to review an order of the National Labor Relations Board, entered in a proceeding on a complaint filed against Continental, on a finding it had violated § 8(a) (1) (unilateral changing of wage rates and hours) and § 8(a) (5) (refusal to bargain) of the National Labor Relations Act as amended, 29 U.S.C. § 158(a) (1), (5). The Board by cross-petition seeks enforcement of such order.

The question presented is whether the employees involved were employees of Continental or of Sterling Bittle, Jr., who was maintaining and operating a bus terminal and depot at Grand Junction, Colorado, for Continental, an interstate carrier by bus, under a contract entered into between him and Continental. More specifically, the question is whether the relationship between Bittle and Continental was that of independent contractor and contractee or employee and employer.

The contract referred to above was entered into January 4, 1961, and was in full force and effect at all times herein material. It was designated as "Standard Commission Agency Contract." In it Bittle is designated as the Agent and Continental as the Company. The provisions of the contract here material are these: The Agent agreed to sell such tickets as the Company might supply for it and its affiliated and connecting carriers at lawfully published tariff rates and furnish to the public information contained in tariffs, bulletins, circulars and literature applicable to the transportation of passengers or handling of baggage, express, or United States mail by the Company and its affiliated and connecting carriers; to use for the transaction of the Agent's and the Company's business and the accommodation of its patrons, a depot waiting room, wash rooms, and toilets, together with space and facilities for the sale of tickets and the handling of mail, baggage and express; to maintain such waiting room and facilities, together with all driveways, walks, approaches and appurtenant premises in a clean, sanitary and safe condition at all times; to hold the Company harmless from all claims incurred or arising directly or indirectly from or on account of any neglect or failure to so maintain such waiting room, facilities and appurtenant premises; and to properly protect the baggage, express and mail, assume full liability for the loss or damage thereof while under the Agent's care and supervision and reimburse the Company for payments or expenses incurred by it by reason of any such loss or damage;

To be liable for the protection at all times of any money or property of the Company in the care or under the supervision of the Agent and to reimburse the Company for any loss thereof or damage thereto;

To render reports of Company business daily and to remit to the Company or deposit to its account all moneys belonging to the Company or collected for the account of the Company;

To permit authorized representatives of the Company during reasonable hours to inspect and check all property of the Company and to inspect and audit all records and accounts pertaining to the Company's business, kept or supervised by the Agent, and to permit such representatives, at their discretion, to collect all moneys belonging to the Company in the possession of the Agent:

To properly file and maintain all tariffs, time schedules, folders, circulars and bulletins furnished by the Company and to furnish to the public information in accordance therewith;

To observe and handle routine dispatching of the Company's operators and busses in accordance with general instructions issued by the Company's operating officials; to relay to the Company employees special emergency instructions; to dispatch orders and information; to check and verify operators' reports; and to check and verify miscellaneous invoices, reports, and receipts of goods and materials;

To check and handle passenger baggage, to handle and bill express shipments, including C.O.D.'s, and to handle United States mail and the transfer of baggage, express and mail from and to coaches of the Company and its affiliated and connecting carriers.

The contract provided that the title to all tickets and proceeds thereof should at all times be in the Company and that the Company might deduct from any money due the Agent, the compensation previously allowed the Agent on tickets or transportation charges, subsequently refunded to patrons.

The contract further provided that the Company would pay the Agent designated percentages of moneys collected by the Agent or received by the Company from the sale of tickets, for express charges, from sales of charters and tours, and for excess baggage and C.O.D. fees, and to permit the Agent to deduct the commission to which he was entitled under such provisions immediately from Company funds in his possession, when making remittances to the Company, as provided for in the contract.

Continental agreed to provide for the Agent's use in the conduct of the Agent's business and the transaction of the Company's and its affiliated carriers' business, for the transfer of passengers, baggage and express and for the accommodation and comfort of the Company's patrons, depot facilities, including waiting room, toilet facilities and facilities for the sale of tickets and the handling of baggage and express, and other facilities, such as driveways and appurtenant premises; to furnish for the Agent's use in the conduct of the Agent's business in the facilities referred to above utilities necessary for the comfort and convenience of the Agent's and the Company's patrons, including all heat, water, and electricity; and to furnish for the conduct of the Agent's business and the transaction of the Company's and its affiliated and connecting carriers' business necessary office equipment, office supplies, forms, waybills, tickets, baggage checks and janitorial supplies necessary for maintaining the depot in clean, sanitary and safe condition, together with towels, tissue, soap and other restroom supplies, and to furnish telephone service for the handling of the Agent's and the Company's business and to pay all telephone charges incurred in the conduct of the Company's business.

That part of the contract setting forth the mutual agreements of the parties in part provided:

"2. The Company reserves no control over the Agent or any of his employees, subordinates or associates as to how the facilities involved in this contract should be furnished or the services here involved should be performed. Agent is responsible only for accomplishing the results hereby undertaken by him. The manner, method and persons used by him in accomplishing such results are for determination by Agent. Agent shall limit his activities to the consummation of the results herein specified and Agent shall have no power to bind the Company by contract or otherwise except as herein provided as to the sale of transportation of persons and/or property. The Company reserves no control whatsoever over the employment, discharge, compensation of or services rendered by an employee, subordinate or associate of Agent. The Company shall not be responsible for the acts or omissions of said employees, subordinates or associates and Agent agrees to save Company harmless from any and all liability caused by any such act or omission. It is the intention of the Company and of the Agent, in accomplishing the results undertaken by him hereunder, sic be an independent contractor and this agreement shall be construed in the light of such intention."

The contract further provided that its term should be from the date thereof to the termination of the sixth calendar month thereafter and for successive periods of six months each thereafter until termination at the close of any six-month period by 30 days' previous notice from either party. It further provided that default in the accounts or remittances of the Agent should be cause for the Company to immediately terminate the contract without notice and that any other violation of any of the provisions of the agreement not remedied within 10 days after notice thereof to the Agent from the Company should also be sufficient cause for the termination of the contract.

The contractual arrangement between Bittle and Continental was not an unusual one. Continental had 104 Commission Agents operating under like contracts out of its total of 107 agencies.

Prior to January 4, 1961, Continental had operated its terminal, depot, and other facilities at Grand Junction through its own employees.

In November, 1960, Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, Local No. 1468, AFL-CIO, informed Continental that the Local represented a majority of Continental's employees at the Grand Junction terminal. Continental informed the Union it would require certification by the Board. A representation proceeding followed on January 23, 1961. At such proceeding Continental contended that the employees working at...