In the Matter of the
INTERNATIONAL BROTHERHOOD OF TEAMSTERS
alleging a representation dispute
pursuant to Section 2, Ninth,
involving employees of
HOLLAND AMERICA WESTOURS
29 NMB No. 22
CASE NO. R-6861
January 7, 2002
This determination addresses the application filed by the International Brotherhood of Teamsters (IBT or Organization) seeking to represent Carmen employed by Holland America Westours (Westours), which operates the McKinley Explorer train. For the reasons set forth below, the National Mediation Board (Board) finds a dispute exists and authorizes an election.
On August 7, 2001, the IBT filed its application. Mary L. Johnson was assigned to investigate. On August 24, 2001, Investigator Johnson requested Westours and the IBT to file position statements on whether Westours is within Railway Labor Act (RLA) jurisdiction. On September 5, 2001, Westours asserted that the "appropriate employer" is Westours Motor Coach, Inc., which operates the McKinley Explorer. Westours did not take a position on RLA jurisdiction.
On October 1, 2001, the IBT filed its position statement. The Organization asserted that Westours, through operation of the McKinley Explorer, is a "carrier" as defined in the RLA. IBT also stated that Westours stipulated to RLA jurisdiction before the National Labor Relations Board (NLRB).
On October 4, 2001, Westours responded that it had not stipulated to RLA jurisdiction before the NLRB.
Is Westours McKinley Explorer a carrier subject to 45 U.S.C. § 151, First?
The IBT asserts that Westours, through its operation of the McKinley Explorer, is a common carrier by railroad subject to the RLA. According to the Organization, the McKinley Explorer carries paying passengers between points in Alaska. In addition, IBT asserts that Westours operates two rail yards leased from the Alaska Railroad.
The Organization acknowledges that the McKinley Explorer operates entirely within the State of Alaska but argues that the railroad "is a link in interstate transportation" because it transports Holland America cruise ship passengers as part of Holland America's tour packages.
The IBT cites the Interstate Commerce Act (ICA), 49 U.S.C. § 10101, et seq. UTDC Transit Services, 17 NMB 343 (1990), and United States v. Yellow Cab Co., 332 U.S. 218 (1947).
Westours does not take a position on jurisdiction.
FINDINGS OF LAW
Determination of the issues in this matter is governed by the Railway Labor Act, 45 U.S.C. §§ 151-188. Accordingly, the Board finds as follows:
The IBT is a labor organization as provided by 45 U.S.C. § 151, Sixth, of the Act.
Section 151, First, defines a carrier as including:
[A]ny railroad subject to the jurisdiction of the Surface Transportation Board, any express company that would have been subject to subtitle IV of title 49, United States Code, as of December 31, 1995, and any company which is directly or indirectly owned or controlled by or under common control with any carrier by railroad and which operates any equipment or facilities or performs any service (other than trucking service) in connection with the transportation, receipt, delivery, elevation, transfer in transit, refrigeration or icing, storage, and handling of property transported by railroad, and any receiver, trustee, or other individual or body, judicial or otherwise, when in the possession of the business of any such 'carrier.'
45 U.S.C. § 151, First.
45 U.S.C. § 152, Fourth, gives employees subject to its provisions "the right to organize and bargain collectively through representatives of their own choosing. The majority of any craft or class of employees shall have the right to determine who shall be the representative of the craft or class for purposes of this chapter."
45 U.S.C. § 152, Ninth, provides that the Board has the duty to investigate representation disputes and shall designate who may participate as eligible voters in the event an election is required.
STATEMENT OF FACTS
Westours is a subsidiary of Holland America Lines which operates cruise ships. Westours operates bus lines and the McKinley Explorer. The McKinley Explorer carries passengers between Anchorage, and Fairbanks, Alaska, stopping in Denali National Park. The railroad runs only between May and September each year.
Holland America advertises the McKinley Explorer as part of one of its tour packages on its web site. Cruises to Alaska embark either from Seattle, Washington, or Vancouver, Canada.
The McKinley Explorer operates out of a rail yard in Anchorage, Alaska, leased from the Alaska Railroad. There is also a rail yard in Fairbanks, Alaska, also leased from the Alaska Railroad, for maintenance issues arising during the trip from Anchorage to Fairbanks.
Westours owns and operates the Explorer's rail cars but subcontracts with the Alaska Railroad for the engines. The tracks McKinley Explorer runs on are owned by the Alaska Railroad.
Of the eight individuals employed as Carmen for the McKinley Explorer, three work only on a seasonal basis. The others are year-round employees based in Anchorage, Alaska.
According to a website about the "Westours Dome Cars", "[t]he idea for the McKinley Explorer . . . was developed after the . . . release of survey results . . . sponsored by the state of Alaska Division of Tourism and the Alaska Visitors Association Marketing Council." The service began in 1987.
49 U.S.C. § 10102 (5) defines a rail carrier as "a person providing common carrier railroad transportation for compensation . . . ."
49 U.S.C. § 10501(a)(2) provides that Surface Transportation Board jurisdiction applies:
[O]nly to transportation in the United States between a place in-
(A) a State and a place in the same or another State as part of the interstate rail network;
(B) a State and a place in a territory or possession of the United States;
(C) a territory or possession of the United States and a place in another such territory or possession;
(D) a territory or possession of the United States and another place in the same territory or possession;
(E) the United States and another place in the United States through a foreign country; or
(F) the United States and a place in a foreign country.
The record establishes that the McKinley Explorer provides common carrier railroad transportation for compensation. Therefore, the Board finds that the McKinley Explorer is a rail carrier under the definition of 49 U.S.C. § 10102 (5). The question remaining is whether its operations are part of interstate commerce under 49 U.S.C. § 10501 (a)(2) and subject to the RLA.
The ICA exempts transportation exclusively within the boundaries of a single state, unless that transportation is a link in the interstate transportation of goods or passengers. Tri-County Community Rail Organization, 17 NMB 321, 335 (1990). In Denver & R.G.R. Co. v. ICC, 195 F. 968 (1912) the court found a carrier whose line was entirely in one state subject to the ICA because the traffic was carried by continuous movement in the stream of commerce from a point in one state to a point in another state. In U.S. v. Yellow Cab Co., 332 U.S. 218 (1947), the Supreme Court established standards for determining when a passenger is in the stream of interstate commerce. The Court examined whether taxicabs which had exclusive contracts with railroads to provide transportation between train stations in Chicago, Illinois, so that passengers might catch connecting trains, were in the stream of interstate commerce. The Court found:
The transportation of such passengers and their luggage between stations in Chicago is clearly a part of the stream of interstate commerce. When persons or goods move from a point of origin in one state to a point of destination in another, the fact that a part of that journey consists of transportation by an independent agency solely within the boundaries of one state does not make that portion of the trip any less interstate in character. . . . That portion must be viewed in its relation to the entire journey rather than in isolation. So viewed it is an integral step in the interstate movement.
Id. at 228-229.
The Court found that taxi services not under special contract or exclusively dedicated to serving interstate travelers had only a "casual and incidental" relationship to interstate commerce. The Court further stated:
But interstate commerce is an intensely practical concept drawn from the normal and accepted course of business. Swift & Co. v. United States, 196 U.S. 375, 398; North American Co. v. S.E.C., 327 U.S. 686, 705. And interstate journeys are to be measured by "the commonly accepted sense of the transportation concept." United States v. Capital Transit Co., 325 U.S. 357, 363. Moreover, what may fairly be said to be the limits of an interstate shipment of goods and chattels may not necessarily be the commonly accepted limits of an individual's interstate journey. We must accordingly mark the beginning and end of a particular kind of interstate commerce by its own practical considerations. 332 U.S. at 231.
The Board applied the Yellow Cab standards in Tri-County Rail and found that its passengers were not in the stream of interstate commerce.
Tri-County is a commuter line which incidentally has stops that are connected by local bus service to three airports and shares four stations with Amtrak. Tri-County Rail, however does not have an interline arrangement with Amtrak, the airports, or air carriers.
17 NMB 321, 338.
In contrast to Tri-County Rail's operations, passengers on the McKinley Explorer are carried from a point in one state (or Canada) to a point in another state. Travel on the McKinley Explorer is an integral part of a transportation package which originates from other parts of the United States or Canada. Therefore, its passengers move in interstate commerce pursuant to 49 U.S.C. § 10501(a)(2). The Board finds that Westours McKinley Explorer is a "carrier" under 45 U.S.C. § 151, First.
Westours McKinley Explorer is subject to the RLA. Based on the investigation, CR-6730 has been converted to NMB Case No. R-6861. The Board finds a dispute exists in NMB Case No. R-6861 among the craft or class of Carmen and authorizes an election using August 5, 2001 as the cut-off date. Pursuant to the NMB Representation Manual, Section 11.2, the Carrier is
hereby required to furnish, within five calendar days, alphabetized peel-off labels bearing the names and current addresses of those employees on the list of potential eligible voters. The count will take place in Washington, DC.
By direction of the NATIONAL MEDIATION BOARD.
Stephen E. Crable
Chief of Staff
Mr. Ray Benning
Roland Wilder, Esq.
Nancy Shaw, Esq.