New Bedford, Woods Hole, Martha's Vineyard and Nantucket Steamship Authority

National Labor Relations Board - Board Decisions

Jun 17, 1960

127 N.L.R.B. 1322 (N.L.R.B. 1960)

1322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Engineering Division, office clerical, plant clerical, and professional
employees, guards, watchmen, and all supervisors as defined in the
Act.
B. All instrument technicians and the instrument technician lead-
man, but excluding all other employees, guards, watchmen, and all
supervisors as defined in the Act.
If a majority of the employees in voting group B vote for the Pipe-
fitters, those employees will be taken to have indicated their desire to
constitute a separate bargaining unit, and the Regional Director
conducting the election is hereby instructed to issue a certification of
representatives to the Pipefitters for such unit, which the Board under
the circumstances finds to be appropriate for purposes of collective
bargaining. And in that event, should a majority of the employees
in voting group A select a bargaining representative, the Regional
Director is instructed to issue a certification of representatives to the
successful labor organization for such a unit, which the Board, under
the circumstances, finds to be appropriate for purposes of collective
bargaining.
However, if a majority of the employees in voting group B do not
vote for the Pipefitters, such group will appropriately be included in
the same unit with the employees in voting group A and their votes
will be pooled with those in voting group A.9 If a majority of the
employees in the pooled group select a bargaining representative,
the Regional Director is instructed to issue a Certification of Repre-
sentatives to the successful labor organization for the pooled group
which the Board in such circumstances finds to be an appropriate
unit for the purposes of collective bargaining.10
[Text of Direction of Elections omitted from publication.]
9 If the votes are pooled, they are to be tallied as follows : The votes for the Pipefitters
shall be counted as valid votes , but neither for nor against any union seeking to represent
the more comprehensive unit ; all other votes are to be accorded their face value, whether
for representation in one of the unions seeking the comprehensive group or for no union.
10 Royal McBee Corporation, 127 NLRB 896.
New Bedford, Woods Hole, Martha's Vineyard and Nantucket
Steamship Authority and National Marine Engineers Bene-
ficial Association. Case No. AO-13. June 17, 1960
OPINION DISMISSING PETITION FOR
ADVISORY OPINION
This is a petition, filed pursuant to Section 102.98 of the Board's
Rules and Regulations, Series 8, requesting an advisory "opinion of
the Board on whether it would assert jurisdiction on the basis of
127 NLRB No. 155.
NEW^BEDFORD, WOODS HOLE, MARTHA'S VINEYARD, ETC. 1323
its current -standards." Petitioner, New Bedford, Woods Hole,
Martha's Vineyard and Nantucket Steamship Authority (herein
called the Authority), alleges in its petition that it is the employer in
a representation proceeding, now pending before the Labor Relations
Commission of the Commonwealth of Massachusetts, initiated by
National Marine Engineers Beneficial Association (herein called
MEBA).
Other relevant facts pleaded in the petition disclose that two other
labor organizations were involved in the State proceeding, but
"failed to enter an appearance"; that no commerce data was requested
or submitted at the hearing held before the State commission on
MEBA's petition;. that the Authority is engaged,in the business of
transporting freight, vehicles, passengers, and mail between New
Bedford, Woods Hole, Martha's Vineyard, and Nantucket; that it
received $2 million for such services, of which over $100,000 repre-
sented income from "interstate linkage" and "employees in com-
merce," during its last fiscal year; and that it is subject to regulation
by the Interstate Commerce Commission.
In its brief, submitted upon special leave obtained under Section
102.103 of the Board's Rules and 'Regulations, the Authority asserts
that it was created and established by chapter 544 of the "Acts of 1948
of the General Laws of the Commonwealth of Massachusetts," and
strongly suggests- that it may be a "political subdivision or state in-
strumentality" of the Commonwealth of Massachusetts.
-Section 2(2) of our Act, in relevant part, and its predecessor in
the Taft-Hartley and Wagner Acts, provides that "The term
`employer'...., shall not include the United States . . . or any State
or political subdivision thereof .- . . ." Since the appearance of this
language in the original or Wagner Act, the Board has consistently
held that it was deprived of jurisdiction over governmental em-
ployers, i.e., the United States or any State or political subdivision
of a State. See Mobile Steamship Association, et al., 8 NLRB 1297,
1305, 1318 ("State division") ; Oxnard Harbor District, 34 NLRB
1285, 1290 ("political subdivision" of the State) ; New Jersey Turn-
pike Authority, 33 LRRM 1528 ("part of state highway depart-
ment") ; Civilian Cafeteria Board, 106 NLRB 208 ("agency of the
United States Government") ; City of Anchorage, 32 LRRM 1549
("political subdivision of the Territory of Alaska and of the United
States"). -
Other cases point to -the same result. Some are unpublished. See
Imperial Irrigation District, '21-RC-1698; University Board of Re-
gents, 7-RC-1208; Paper Makers Importing Co., Inc., et al., 116
NLRB 267, 270. Cf. Middle Department Association of Fire Under-
writers, 122 NLRB 1115, 1116. Cases like Peter D. Furness, trading
as Peter D. Furness Electric Co., 117 NLRB 437, 439, enfd. 254-F.
1324 • DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2d 221- (C.A. 3)', and Plumbers etc., Local 298, AFL v. County of
Door,'etc:, 359 U.S. 354, are inapposite as they involve action directed
against, rather than jurisdiction over, governmental agencies. Siini-
lar considerations apply to the'1959'amendments to Section '8(b) (4)
of our Act; those amendments, although proscribing conduct therein
specified against governments and political subdivisions, do not confer
jurisdiction on the Board over the agencies affected. See section
704(a), Labor-Management Reporting and Disclosure Act of 1959,
Public, Law 86-257, 86th Congress.
Accordingly, the Board must initially ascertain the character of the
Authority. If the latter is a political subdivision or agency or in-
strumentality of the Commonwealth of Massachusetts, the Board as
a matter of law is powerless to assume jurisdiction over it, regardless
of the interstate nature of its functions.' We turn now to the facts
concerning the status of the Authority. They are taken wholly from
statutes.
The Authority is a- "body corporate" -composed of five' members
appointed and removed by the Governor, by and with the advice and
consent of the executive' council. ' It was established to acquire and
operate the steamship line operated by Massachusetts Steamship Lines,
Incorporated, with power to finance this project by issuance of bonds
and collection of fares and charges. for service.' It must submit an
annual report to the Governor and State legislature; its members
must execute a surety bond ' to the Commonwealth before issuing
bonds; and its books are audited annually by the State auditor. It is
not required to pay any taxes,on'the project or any other property or
income, and its bonds and the income therefrom are free from taxa-
tion "within the commonwealth." Although its bonds are not general
obligations of the Commonwealth, the latter will pay certain deficien-
cies arising from the operation of the project; but, if such is the case,
the Commonwealth may assess the deficiencies against certain mu-
nicipalities mentioned in the enabling Act. Finally, "the operation
and maintenance of the [project] will constitute the performance of
essential governmental functions." Chapter 544, Acts & Resolves of
Mass., 1948, as amended by chapter 142, Acts & Resolves of Mass.,
1949.
In our opinion whether the Authority is a political subdivision or
instrumentality of the Commonwealth of Massachusetts depends upon
State law, since it is a creature of the State. See R.F.C. v. Beaver
County, 328 U.S. 204, 208. When a constitutional issue is involved,
Federal courts usually retain jurisdiction of an action before them
but await definitive determination of the specific local law questions,
in the light of the constitutional issues presented, from the local
courts. Government Employees v. Windsor, 353 U.S. 364. But we
believe that no constitutional questions are here involved. Accord-
NEW BEDFORD , WOODS HOLE , MARTHA'S VINEYARD , ETC. 1325
ingly, we shall proceed to ascertain local law with respect to whether
the Authority is a governmental part of the ,Commonwealth of Massa-
chusetts.
"The highest court of the state is the final arbiter of what is state
law. When it has spoken , its pronouncement is to be accepted
by federal courts as defining state law." West v. A.T. & T., 311 U.S.
223, 236. ( But cf . Dyer v . Sims, 341 U.S. 22, 28-30 , where the Su-
preme Court disregarded State court interpretations of State law
because an interstate compact was involved ). If the State 's highest
court has not spoken , " it is the duty of the [Federal courts] in every
case to ascertain from all available data what the state law is and
apply it . . . [intermediate appellate court decisions ] is a datum
for ascertaining state law. " West v. A.T. ct T., supra, at 237; Fidelity
Trust Co. v . Field, 311 U.S. 169, 177-178. In the absence of decisions
of the highest or intermediate State tribunals , the Federal courts will
look to decisions by State courts of original jurisdiction as a datum
for ascertaining State law. Fidelity Trust Co. v . Field, supra , at 179;
King v. Order of Travelers , 333 U.S. 153 , 160-161.
Petitioner 's brief refers to no State court decisions which would aid
us in determining whether it is an arm of the Commonwealth of
Massachusetts ; nor have we been able to find any. But its brief does
cite two decisions of the Massachusetts Labor Relations Commission.
While we entertain some doubt whether the pronouncements of this
commission amount to a datum for ascertaining State law within the
meaning of West v. A.T . c6 T. supra , we believe that they offer some
guide as to the position of an "authority " in the governmental struc-
ture of Massachusetts.
Mystic River Bridge Authority, 28 LRRM 1154 , held that a bridge
authority was not a "political subdivision" of Massachusetts as that
term was used in the State labor relations law exempting political sub-
divisions from its provisions . But the commission nevertheless held
that the bridge authority , because it was a "public instrumentality
performing essential governmental functions . . . in the operation
of a project of the Commonwealth . . . is a functional subdivision of
the Commonwealth." Accordingly , it was held to be "a part of the
Commonwealth" and, therefore, not subject*to the, Commission, be-
cause the State Labor Relations Act also exempted the Commonwealth
from its provisions.
Metropolitan Transit Authority, 37. LRRM 1432, was held to be
subject to the State labor relations commission because the statute
creating that authority ' was construed to require that result even if
the authority ' were found to., be , a political subdivision of the
Commonwealth.
Of the two State labor relations cases mentioned above, Mystic
River Bridge Authority more closelylresembles the instant case. And
1326 DECISIONS OF NATIONAL'LABOR RELATIONS BOARD
Mystic River and the. instant case are comparable to New Jersey
Turnpike Authority , 33 LRRM 1528, where we held a turnpike au-
thority not to be an employer under Section 2 ( 2) of our Act. On the
facts recited herein we are of the opinion that the Authority is not an
employer over whom we are vested with jurisdiction under Sections
8(a) and 9 of the Act. To some extent this conclusion is confirmed
by the classification of the Authoritys bonds as those of the Common-
wealth of Massachusetts . See "Moody 's Governments and Munici-
pals," 1953, p. 555. 1
We also are led to this result - by the categorical statement in the
statute --that the authority is performing "essential government func-
tions," that its property and income are tax exempt , that the
Commonwealth will pay deficiencies caused by the operations of the
Authority, and that the bonds of the Authority and the income there-
from "shall at all times be free from taxation in this Commonwealth."
Such factors prompted our decision in New Jersey Turnpike Author-
ity, 33 LRRM 1528. We note , but do not rely on, the comment in
"Moody's," supra, that " in the opinion of counsel ," the bonds of the
Authority are not taxable under the Federal income tax laws.
Nor do we believe that the 1954 amendment to the Act creating the
Authority affects the foregoing conclusion. See chapter 449, Acts &-
Resolves of Mass., 1954. This amendment merely extends the cover-
age of chapter 150 B of the Mass. General Laws to the Authority.
And chapter 150 B , in many respects comparable to Title II of our
Act, also includes provisions for settlement of industrial disputes
interrupting the "distribution of food, fuel , water, electric light and
power, gas , and hospital and medical services ." But said chapter 150
B excludes from the definition of "employer " the "commonwealth, or
any political subdivision thereof. " An amendment subjecting the
Authority to the procedures of chapter 150 B does not, in our opinion,
change its essential features as a part of the Commonwealth 's govern-
mental organization.
Cases like California v. Taylor, 353 U.S. 553, where a State-owned
railroad was held subject to the Federal Railway Labor Act, are
distinguishable . In the instant case, unlike the Taylor case , Congress
expressly removed from our powers jurisdiction over governmental
agencies . This distinction was specifically approved in the Taylor
case, 353 U . S. 553 , 564-566 . Nor do we consider our decision to clash
with Erie County Water Authority v. Kramer, 41 LRRM 2184, be-
cause a State statute specifically subjected the authority to the State
Labor Relations Act, as .it impliedly did in the Metropolitan Transit
Authority case, 37 LRRM 1432: Civil Service Forum v. N.Y. Transit
Authority, 40 LRRM 2385, is to the same effect.
On the basis of the above , we are constrained to find that the
Authority is not an employer over whom, we have jurisdiction with
LOCAL 560, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 1327
respect to labor disputes cognizable under Sections 8(a) and 9 of our
Act. It follows that the petition for an advisory opinion must be
dismissed for want of jurisdiction. Our decision is confined to the
facts before us, and is not to be construed as precluding us or any
other forum from reconsidering the matter in litigation where a fuller
record is developed.
MEMBERS BEAN and JENKINS took no part in the consideration of
the above Opinion Dismissing Petition for Advisory Opinion.
Local 560, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America and The Pennsylvania
Railroad Company
Local 560, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America and Riss and Co., Inc.
Local 641, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America and Riss and Co., Inc.
Joint Council No. 73, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America and Riss
and Co., Inc. Cases Nos. 22-CC-36, 22-CC-38, 22-CC-39, and
22-CC-41. June 20, 1960
DECISION AND ORDER
On July 30, 1959, Trial Examiner Thomas S. Wilson issued his
Intermediate Report in these proceedings, finding that Locals 560 and
641, International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, had engaged in and were engaging in
certain unfair labor practices and recommending that they cease and
desist therefrom and take certain affirmative action, as set forth in
the copy of the Intermediate Report attached hereto. He further
found that the Respondent, Joint Council No. 73, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, had not engaged in any such practices and recommended
that the complaint insofar as it related to the Joint Council be dis-
missed. Thereafter, the General Counsel and Respondent filed excep-
tions and supporting briefs.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions and briefs, and the entire record
in these cases, and hereby adopts the Trial Examiner's findings, con-
clusions , and recommendations with the additions, modifications, and
corrections hereinafter indicated.
127 NLRB No. 157.