NLRB v. Jordan Bus Company, 8788.

• Decision Date: 01 June 1967
• Docket Number: No. 8788.,8788.
• Citation: 380 F.2d 219
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. JORDAN BUS COMPANY and Denco Bus Lines, Inc., Respondents.
• Court: U.S. Court of Appeals — Tenth Circuit

380 F.2d 219 (1967)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. JORDAN BUS COMPANY and Denco Bus Lines, Inc., Respondents.

No. 8788.

United States Court of Appeals Tenth Circuit.

June 1, 1967.

Nancy M. Sherman, Washington, D. C. (Arnold Ordman, Dominick L. Manoli and Mercel Mallet-Prevost, Washington, D. C., with her on brief), for petitioner.

A. Bob Jordan, Oklahoma City, Okl., for respondent Jordan Bus Co.

Carl Bagwell, Oklahoma City, Okl., for respondent Denco Bus Lines, Inc.

Before MURRAH, Chief Judge, HICKEY, Circuit Judge, and CHRISTENSEN, District Judge.

MURRAH, Chief Judge.

Respondents Jordan Bus Co. and Denco Bus Lines, Inc., deliberately refused to bargain with the certified representative of their employees for the purpose of raising in this unfair labor practice proceeding questions concerning the Board's jurisdiction, the appropriateness of the unit, and the sufficiency of the notice afforded Denco in the underlying representation proceedings. Finding that there was no question of fact and that all questions of law and mixed questions of law and fact had been adjudicated in the precedent representation proceeding, the trial examiner decided this case on the pleadings. He found that Jordan and Denco constituted a single employer, that as a single employer they were engaged in commerce within the meaning of the Act, and that a unit comprised of Jordan and Denco drivers was appropriate for the purposes of collective bargaining. The examiner concluded that the admitted refusal to bargain violated § 8(a) (5) and (1) and ordered the respondents to bargain upon request and to post notices. The Board affirmed the examiner's findings and order, and now petitions for enforcement. We grant the petition.

Jordan and Denco are small bus lines operating in central and southern Oklahoma. Denco's routes are entirely intrastate; Jordan's are intra and interstate. Both are connecting carriers who move interstate passengers and baggage over their intrastate routes. Both have their main offices and principal places of business in Hugo, Oklahoma, where the two companies share an office.

The crux of this lawsuit lies in the Board's finding that respondents constitute a single employer. If this finding is supported by substantial evidence, the Board could properly consider the respondents' operations together for jurisdictional purposes. See Radio and Television Broadcast Technicians Local Union 1264 v. Broadcast Service of Mobile, Inc., 380 U.S. 255, 85 S.Ct. 876, 13 L.Ed.2d 789 and cases cited; N.L.R.B. v. City Yellow Cab Co., 6 Cir., 344 F.2d 575. And, a unit composed of the employees of nominally separate entities found to be a single employer is unquestionably an appropriate one.¹ See, e. g. N.L.R.B. v. A. K. Allen Co., 2 Cir., 252 F.2d 37. And see N.L.R.B. v. Groendyke Transport, Inc., 10 Cir., 372 F.2d 137.

In its brief the Board refers to various facets of respondents' operations to show the requisite connection with commerce. It is sufficient, however, to note that the revenue realized by Jordan alone from the carriage of passengers over its interstate routes meets the Board's self-imposed standards for transportation enterprises as set out in H. P. O. Service, Inc., 122 N.L.R.B. 394. The Board's policy is to assert jurisdiction over transportation enterprises which realize a minimum of $50,000 gross annual revenue from furnishing interstate transportation services. Jordan took in over $100,000 from its interstate routes in 1963, and over $53,000 in the first six months of 1964.² This is sufficient to establish jurisdiction over Jordan, and over Jordan and Denco if they be a single employer. Jordan's reliance on the standards for transit systems established in Charleston Transit Co., 123 N.L.R.B. 1296, is misplaced, for this is not a transit system case.

We turn then to the crucial question whether Jordan and Denco are a single employer. The Board will consider separate corporations as one for jurisdictional and other purposes if they are sufficiently integrated, and in determining the extent of integration the relevant factors are interrelation of operations, centralized control of labor relations, common management, and common ownership or financial control. See Radio and Television Broadcast Technicians Local Union 1264 v. Broadcast Service of Mobile, Inc., supra; Pizza Products Corp. v. N.L.R.B., 6 Cir., 369 F.2d 431; N.L.R.B. v. A. K. Allen Co., supra; W. B. Johnston Grain Co. v. N.L.R.B., 10 Cir., 365 F.2d 582; N.L.R.B. v. W. L. Rives Co., 5 Cir., 328 F.2d 464.

It stands admitted that there was a time when one man, A. R. Jordan, owned and operated both respondent companies, and they then constituted a single employer. See footnote 1, supra. Respondents contend, however, that when A. R. Jordan in August of 1962 transferred his stock in Jordan Bus to his son, A. Bob Jordan, the two companies began a separation process, and they are now independently operated to the extent that they may no longer be considered a single employer. The Board found otherwise, on the following undisputed facts gleaned largely from the testimony of A. Bob Jordan.

(1) In several instances the same bus and driver is used to service an entire route, although part of the route is operated under the Denco franchise and the rest under the Jordan franchise. The drivers receive separate paychecks from each company based on the amount of mileage driven over the respective parts of the route. A. Bob Jordan explained that respondents made these arrangements because "It was felt that the drivers, by running straight through could have better hours, and be able to drive more miles a day, therefore increasing their pay * * *". These drivers are hired by Jordan, but must be approved by the management of both corporations. In this manner four of Jordan's seven drivers work part of the time for Denco, Denco having two drivers of its own who do not drive for Jordan except in an emergency. (2) Jordan leases buses from A. R. Jordan and uses some of them on both Jordan and Denco routes. Jordan provides maintenance on these buses and bills Denco for its proportionate share. (3) Jordan and Denco share an office in Hugo. The office personnel are Jordan employees, but they perform work for both companies and Denco is billed for a proportionate share of the cost. The companies use the same bookkeeper, but keep separate books. (4) Although the stockholders and management of the two companies are different people, they are all closely related members of the same family. (5) Jordan's supervisor "indirectly" supervises Denco employees in that when he "shapes up" a Jordan driver he automatically does the same for Denco. Furthermore, although paid solely by Jordan, he is the dispatcher for drivers covering both Jordan and Denco segments of the same route. There is thus a degree of common management between the two companies.

The Board was of the opinion that the functional integration, physical proximity, and degree of common management demonstrated by the foregoing facts warranted a finding that Jordan and Denco are a single employer. This finding is clearly supported by substantial evidence. To be sure, the two companies are separately owned. But this factor is not controlling, and indeed is the factor usually given least weight by the Board. See the Board's statement of policy...