acquired with the funds of the New York Central. The remaining stock of the United States Freight has been distributed among many stockholders, no one of whom has owned more than about one percent. At each annual meeting of the stockholders of the United States Freight since 1932, the stock beneficially owned by the New York Central has represented a majority of the votes cast. These facts found by the Board are 'supported by the evidence.'
The evidence thus supporting the facts, and such facts disclosing control under the interpretation of the Board, and such interpretation having 'a reasonable basis in law,' no more need be said on the question of control, were it not for petitioner's insistence that the creation of a trusteeship in 1939, in Balthasar H. Meyer, withdrew from the New York Central the control of this stock. This relationship was established after a decision by the Interstate Commerce Commission in the Freight Forwarders Investigation, 299 I.C.C. 201, in which the Commission found that New York Central, through stock ownership and working relations, controlled petitioner 'so as to constitute the latter an agency or instrumentality of the New York Central for the consolidation of less-than-carload shipments into carloads.' Apparently in an effort to avoid the consequences of this decision, Mr. Meyer was made a trustee of this stock with power to vote it free of control or suggestion by the corporations which were the creatures of the New York Central and which had been interposed between the Freight Company and the New York Central in the ownership of the stock. The New York Central, however, remained the beneficial owner of the stock, was both the creator and sole beneficiary of the trust, and from a practical standpoint at least, could terminate it at will, with express sanction for its termination after the enactment of the Freight Forwarders Act on May 16, 1942, 49 U.S.C.A. § 1011(g), permitting a railroad to control a freight forwarder. Inasmuch as the Court is not permitted to weigh the evidence in this proceeding or draw its own inferences therefrom,
the existence of this trust would not be sufficient to overcome the Board's finding, even though there were a disposition, which does not exist, to allow legal formalism to obscure reality. The Board's decision that New York Central 'controlled' petitioner therefore will be sustained.
The second element of the definition of employer is the meaning of the expression, 'service * * * in connection with the transportation of * * * property by railroad, or the receipt, delivery, * * * transfer in transit, * * * storage, or handling of property transported by railroad * * * .'
In Railroad Retirement Board v. Duquesne Warehouse Co., 326 U.S. 446, 453, 454, 66 S. Ct. 238, 241, the Supreme Court held that, 'at the very least the phrases in question embrace activities which form a part of transportation services when performed by a railroad but which it chooses to have performed by its affiliate.'
of the Interstate Commerce Act, in defining 'transportation,' includes services in connection with the 'receipt,' 'delivery,' 'transfer in transit,' 'storage,' and 'handling' of property transported. This language is identical with the language used in the Railroad Unemployment Insurance Act.
Briefly stated, the Board found that petitioner was fundamentally a transportation agency engaged in the handling of railroad less-than-carload freight; that is operations were primarily directed toward the consolidation of less-than-carload merchandise entrusted to it by the public into carloads for transportation in line-haul movement by railroads and the concentration of such movements over direct and economical rail routes; that where such rail movement is impracticable or uneconomical, petitioner utilizes truck transportation, for the most part in coordination with rail movements; and that in so doing it receives, stores, handles, and delivers less-than-carload merchandise transported by rail, loads and unloads the same into and from railroad cars, and transfers them in transit from car to car at break-bulk points. These findings of the Board are supported by the evidence, and they clearly disclose that petitioner comes within the second element of the definition of 'employer.'
In view of the foregoing, the decision of the respondent will be affirmed. Counsel will submit, on notice, appropriate judgment carrying this opinion into effect.