The certificates issued to applicant pursuant to the previously described purchases, and the authority granted in the extension proceeding authorize more extensive operations that those for which authority is claimed by applicant under the "grandfather" clause in the same territory. All of the routes originally claimed in the latter proceeding, with the exception of a few segments of through routes, some minor connecting routes, and a number of intermediate or offroute points, are included in the authority acquired by the purchases or that granted in the extension proceeding. Apparently the only intermediate and off-route points originally claimed, and which were not included in the prior authority granted applicant, are Beacon, Wolcott, Clyde, Lyons, Newark, Brockport, Dansville, and Gloversville, N. Y., Lancaster, Washington Court House, Wilmington, Wooster, Delphos, Chardon, Rittman, and Smithfield, Ohio, and Valparaiso, and Griffith, Ind. The exhibits submitted in evidence, in support of the "grandfather" application, listing a substantial number of shipments transported by the owner-operators between June 1934 and June 1936, and which admittedly fairly represent the scope of the claimed operations, support the oral testimony of the owner-operators introduced at the further hearing, that with few exceptions their vehicles were operated between New York City and nearby points in New Jersey, on the one hand, and points in upper New York, on the other, with occasional trips from or to Chicago, Cincinnati, and Pittsburgh. An examination of the evidence of record discloses that the greater portion of the traffic was transported by the owner-operators between points and over routes authorized in the extension proceeding, that is, between New York City and New Jersey points on the one hand, and points in upper New York, between Albany and Buffalo, on the other. Their is neither oral nor documentary evidence that operations were conducted over any through or connecting routes other than those over which applicant already has been granted authority. With respect to the additional intermediate and off-route points, the documentary evidence shows that Gloversville was served one time, Chardon seven times, Rittman one time, and Griffith two times prior to June 1, 1935, Clyde and Lyons were served one time each and Gloversville two times thereafter. No shipments are shown to have been handled from or to the other claimed points before or after the statutory date. There were a few shipments to several other points from and to which applicant has not been granted authority but they were infrequent and of a sporadic nature. For example: In New York, one shipment is shown to have moved to Sodus, two to Spencerport, one to Skaneateles, and one each to Sharon Springs, Pen Yan and Manlius prior to June 1, 1935, and two to Sharon Springs and four to Manlius thereafter. In Ohio, one shipment each is shown to Smithfield, Carey, and Warren before June 1, 1935, and one to Gallipolis thereafter. In Indiana one shipment is shown to South Bend before the statutory date, but none are shown to have moved from or to this point thereafter. In Illinois, one shipment is shown to have moved to St. Charles and three to Joliet before June 1, 1935, and two to Freeport and one to Rockford thereafter. In Massachusetts. three shipments are shown to Lawrence, two to Lowell, two to Haverhill, one to Salem, two to Lynn, before the statutory date, and three to Lawrence, two to Lowell, two to Haverhill, two to Salem, one to Lynn, and three to Fitchburg thereafter. Applicant, however, does not claim any rights to points north of Boston. There was one shipment to Bradford, R. I., before June 1, 1935. No shipments are shown to have moved from or to this point thereafter. It is evident that such infrequent and sporadic service is insufficient to support a claim to "grandfather" rights from and to such points. It is clear from the foregoing that if applicant's contention, that it was in bona fide operation on and after June 1, 1935, as a common carrier by motor vehicle of general commodities, should be sustained, it would nevertheless not be entitled to any authority not included in its present operating authority. In view of this, no need exists for reconsideration of the findings in the prior report that it has failed to establish that it was in bona fide operation as a common carrier by motor vehicle within the meaning of the act. Upon oral argument, we find in No. MC-222, that applicant has failed to establish that it is entitled to any authority to conduct operations, in interstate or foreign commerce, under the "grandfather" clause of section 206 (a) of the act, as a common carrier by motor vehicle, in addition to the authority heretofore granted in other proceedings, and that the application should be denied. We further find in No. MC-222 Sub-No. 1), that the findings of division 5, in the prior report, 31 M. C. C. 77, denying this application, should be affirmed. An appropriate order denying the applications will be entered. 43 M. C. C. No. MC-103548 (SUB-No. 1)1 BENJAMIN L. KLEIN CONTRACT CARRIER APPLICATION Submitted December 31, 1942. Decided June 9, 1944 1. In No. MC-103548 (Sub-No. 1) application dismissed in view of findings in No. MC-C-332. 2. In No. MC-C-332, respondent found, upon this record, to have been performing transportation as a private carrier subject only to section 204 (a) (3) of part II of the Interstate Commerce Act. Proceeding discontinued. A. M. Lucks for applicant in No. MC-103548 (Sub-No. 1), and respondent B. L. Klein in No. MC-C-332. William Dubin, Norman Friedman, and Herman B. J. Weckstein for protestants. George H. English and S. Parker New for the Interstate Commerce Commission. REPORT OF THE COMMISSION DIVISION 5, COMMISSIONERS LEE, ROGERS, AND PATTERSON BY DIVISION 5: These proceedings were heard upon a consolidated record, and were the subject of a single report and recommended order. Exceptions were filed by the Legal and Enforcement Section of the Bureau of Motor Carriers of this Commission to the order recommended by the examiner. By application in No. MC-103548 (Sub-No. 1), filed March 17, 1942, Benjamin L. Klein of Olyphant, Pa., doing business as Klein Dress Co., seeks a certificate of public convenience and necessity or a permit authorizing operation, in interstate or foreign commerce, as a common or contract carrier by motor vehicle, of dresses, on hangers, from Olyphant to Yonkers, N. Y., and of hangers, piece goods, and other dress materials, in the reverse direction, over regular routes which need not be described in view of the findings herein. The New Jersey Washable Dress Contractors Association, and motor carriers engaged in transporting dresses and other garments oppose the application. By an order entered February 19, 1942, in No. MC-C-332, we entered upon an investigation on our own motion into (1) the character and This report embraces No. MC-C-332, Transportation Activities of B. L. Klein. 'Dress materials consist of buttons, buckles, markers, and trimmings. nature of the motor-carrier operations performed by B. L. Klein for J. L. Honig and (2) such other matters as may be pertinent to the subject of such investigation, in order to determine whether B. L. Klein is engaging in transportation subject to part II of the Interstate Commerce Act. Although Klein and Honig were made respondents in this investigation, only Klein was represented and appeared at the hearing. Klein has been engaged as a contractor in making ladies' and children's dresses for over 20 years. His plant, located at Olyphant, is equipped with cutting tables and sewing and pressing machines. Approximately 175 to 200 persons, depending upon the fluctuations of business, are employed to cut, sew, assemble, and press the dresses. For some time prior to, and at the time of, the hearing Klein was making dresses for three jobbers, Joseph Love, Inc., of Yonkers and New York City, J. L. Honig of New York City, and Gilmore Frocks, Inc., of New York City and Lebanon, Pa., hereinafter referred to individually as Love, Honig, and Gilmore. These jobbers are engaged in the business of selling dresses. They determine the specifications of the dresses, including the styles, sizes, number, and materials to be used. Klein is furnished with these specifications, the piece goods, and subsequently such trimmings as are required; and for a specified sum per dozen dresses he converts the materials into the finished dresses for delivery back to the jobbers pressed and on hangers ready for sale. In other words, the jobbers furnish the materials and specifications and Klein furnishes the labor. In some instances certain of the transportation between the jobbers' stockrooms and Klein's plant has been performed by Klein. Such transportation was discontinued, at least in part, prior to the hearing upon advice of a representative of this Commission; and application No. MC-103548 (Sub-No. 1) was filed in order to obtain appropriate authority, if required, to continue the transportation formerly performed by Klein between Olyphant and Yonkers. Klein commenced making dresses for Love sometime in 1937, and about that time he acquired a small truck capable of transporting about 200 dozen dresses. Thereafter, finished dresses were carried by him in his truck to Love's place of business at Yonkers, and the piece goods and trimmings used in the manufacture of dresses were carried back to his plant on return. This practice was continued until Klein was informed that it was unlawful. Since discontinuing this service the piece goods and trimmings have been shipped by a two-line interchange motor-carrier service, and the dresses have been shipped unpressed in cases by a similar service. Klein has arrangements with Love to have the dresses pressed upon arrival at Yonkers, but Love's pressing facilities are inadequate and the arrangements are temporary. Klein formerly made 500 to 600 dozen dresses per week for Love during the time he was performing the described transportation, but he now makes only about 100 dozen dresses per week for this jobber. This decrease apparently is because of the inadequate pressing facilities of Love and the reluctance of the latter to have the pressing performed at his plant rather than at Klein's plant. Klein has available a two-line motor service, with the interchange at New York City, to deliver pressed dresses on hangers to Yonkers, but he considers that the use of such service would result in the soiling and general mishandling of the dresses to such an extent that he would have to reimburse Love for dresses damaged in transit. Klein claims that he has not transported any piece goods or trimmings from Honig in New York to Olyphant, or finished dresses from Olyphant to New York, although certain protestants stated that on occasions they have seen his truck at Honig's place of business. In any event, such a service was not being performed at the time of the hearing, and Klein does not desire or seek authority to perform this transportation. It is clear that generally, since 1937, piece goods and trimmings from Honig have been delivered to Klein's plant by H. W. Glantz, doing business as Anthracite Transportation Company, a common carrier by motor vehicle; and the return shipments of finished dresses also have been transported by the same carrier. Honig pays the transportation charges on such shipments in both directions. The materials furnished Klein by Gilmore were and are forwarded by Railway Express from New York City to Olyphant. Upon completion of the dresses, Klein has transported them in his own truck from Olyphant to Lebanon, Pa., where Gilmore maintains a place of business devoted to the receipt from various contractors of dresses made by them and the consolidation of the dresses for shipment to customers throughout the United States. Klein considers the transportation performed by him to be in intrastate commerce; and the record is not clear as to whether this service was being performed at the time of the hearing. Klein's entire income is derived from compensation received from the jobbers for the manufacture of dresses. He quotes the jobbers a price per dozen for the manufacture of the dresses, but he does not indicate to the jobber the various elements covered by the quotation. However, most of the arrangements between Klein and the jobber are based upon oral understandings previously arrived at by the parties. For instance, Honig pays for the transportation charges of the for-hire carriers used in both directions, while Love, during the time Klein was performing the service, paid no specific sum for the transportation. In each instance, however, Klein maintains insur |