Breeding Transfer Co.

National Labor Relations Board - Board Decisions

Oct 26, 1954

110 N.L.R.B. 493 (N.L.R.B. 1954)

BREEDING TRANSFER COMPANY 493
BREEDING TRANSFER COMPANY and GENERAL DRIVERS, WAREHOUSEMEN
AND HELPERS , LOCAL 21, A. F. L., AFFILIATED WITH THE INTERNA-
TIONAL BROTHERHOOD OF TEAMSTERS , CHAUFFEURS, WAREHOUSEMEN
AND HELPERS OF AMERICA , PETITIONER . Case No. 14-RC-2512.
October 26,1954
Decision and Order
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Philip Ross, hearing officer.
The hearing officer's rulings made at the hearing are free from prej-
udicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds that it will not
effectuate the policies of the Act to assert jurisdiction in this case for
the reasons stated below.
The Employer, a copartnership, is engaged in the general hauling
of furniture and freight at Hannibal, Missouri, employing 4 drivers
and utilizing 6 trucks in its operations. In 1953, the Employer pur-
chased goods directly from sources outside the State of Missouri worth
less than $50. It performed all its hauling services within the State,
for which it received a total income of about $26,500 last year. Of
this amount, about $8,400 was received for the performance of local
pickup and delivery services, pursuant to contracts, for the Chicago,
Burlington & Quincy Railroad, the Wabash Railroad, and the Bur-
lington Truck Line, all of which are interstate common carriers. In
1953 the Employer also received about $900 for services performed as
an agent for 3 motor van lines, of which 2, North American and
Wheaton Lines, are located outside the State. The Employer did
not use any of its employees or equipment in connection with the per-
formance of the latter services. The remainder of its income was
derived from local hauling services.
The Employer contends that its limited operations do not have a
sufficient impact upon interstate commerce to warrant the expenditure
of Federal funds in the application of the statute which we admin-
ister. The Petitioner argues that because some of the Employer's
deliveries constitute the last link in the interstate transportation of
materials, the Board, as in the past, ought to exercise its jurisdiction.
It has been the consistent position of the Board that it better ef-
fectuates the purposes of the Act, and promotes the proriipt handling
of major cases, not to exercise its jurisdiction to the fullest extent
possible under the authority delegated to it by Congress, but to limit
that exercise to enterprises whose operations have, or at which labor
disputes would have a pronounced impact upon the flow of interstate
commerce. In furtherance of that policy, the Board in October 1950
110 NLRB No. 64.
494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
adopted certain standards to govern its assertion of jurisdiction.
Those standards resulted from a study of the Board's experience up,
to that time.
Pursuant to these standards, the Board determined to exercise its,
jurisdiction over enterprises that serve as an "essential link in the,
services performed by . . . instrumentalities of commerce."'
Early this year, the Board undertook to study and reappraise the'
1950 jurisdictional standards in the light of the Board's experience.
since their adoption and also in the light of changing economic con-
ditions. Based upon that study and reappraisal, it is our opinion that
the jurisdictional standard enunciated in Red Cab, Inc., should be re-
vised so that the Board's long-established policy of limiting the exer-
cise of its jurisdiction to enterprises whose operations have, or at
which labor disputes would have, a pronounced impact upon the flow
of interstate commerce can be better attained.
We have determined that in future cases the Board will assert juris-
diction over transportation operations or other local activities which
constitute a link in the chain of interstate commerce only where the-
annual income received by the particular company involved from
services which constitute a part of interstate commerce total no less
than $100,000.2
Our senior dissenting colleague, Mr. Murdock, has selected this case
as a vehicle for making a sweeping broadside attack upon every fea-
ture of our new jurisdictional plan. There emerges from his opinion
the strong view that this Board has no legal or moral right to self-
impose any restrictions upon its activities, and that we are inexorably
bound to extend our regulatory authority to the outermost boundaries,
of the constitutional Federal power. If this view is correct, it is con-
trary to the consistent position taken by this Board since its inception,
now almost 20 years ago. We think it also fair to point out that the.
1950 jurisdictional plan of the Board, no less than this one, drew a
jurisdictional line short of the legal limits of this Board's jurisdic-
tion, and at that time, no voice on the Board was heard to question
the propriety of the Board's action. Indeed, Member Murdock joined
in the announcement of that policy, which was flatly and openly in
opposition to the then General Counsel who advocated the position-
now taken by Member Murdock-that the Board was required by law
to exercise the fullest reach of its jurisdictional powers.'
1 Red Cab, Inc., 92 NLRB 175.
2 To the extent that Red Cab, Inc, and cases relying thereon are inconsistent with our
decision herein , those cases are overruled.
a In 1949 , appearing as spokesman for this Board , its then Chairman, Paul Herzog, tes-
tified as follows in hearings before the Senate Committee on Labor and Public Welfare,
81st Congress , 1st Session , on S. 249, p 175:
It has been the position of the Board that the Federal Government should not use
its constitutional power right up to the hilt . In other words ; where something has
a local flavor to it, the mere fact that we could under the present constitutional doc-
BREEDING TRANSFER COMPANY 495•
We did not expect that every Member of this Board would agree
as to the jurisdictional standards to be applied by this Agency, but
we think it late in the day for a Member of the Board, who has in the
past given his stamp of approval to similar jurisdictional restrictions,.
to question the right of the present Board to modify its jurisdictional
standards. Similarly, since Member Peterson has never before indi-
cated any disagreement with the 1950 plan, and is now proposing
various changes in it, we are at a loss to comprehend the basis for his,
assertion that the majority plan is arbitrary and capricious.
The fact is that this Board, since the earliest days of the Wagner
Act, has operated on the premise, which has court and legislative ap-
proval, that the Board has discretion to determine the circumstances
under which it will exercise its jurisdiction over labor disputes.
Prior to 1950, this discretion was exercised on a case-to-case basis, but
it is a matter of history that the Board for years refused to assert
jurisdiction over many establishments, such as retail stores, hotels,.
restaurants, taxicabs, local transit companies, and even the entire con-
struction industry. In 1950, this ad hoc basis of exercising jurisdic-
tion was abandoned in favor of a codified jurisdictional plan-
adopted without a dissenting voice on the Board-which imposed
fixed dollar volume limits upon the enterprises over which the Board
would assert its jurisdictional power. This 1950 plan, like the pres-
ent one, drew a line short of the legal limits of the Board's jurisdic-
tion. It may, therefore, be justly stated that, if our present modifica-
tion of the 1950 plan is ultra vires, this Board has been acting on an
incorrect legal premise from its inception and certainly since the
unanimous announcement of the 1950 jurisdictional plan.
We, of course, concede that this Board, like any other quasi-
judicial agency, has no authority to act capriciously or arbitrarily.
This is a fundamental and wholly salutary rule of law which governs
our action on jurisdiction as well as every substantive decision which
we make. We have no doubt that the courts will scrutinize our new
jurisdictional policy in the light of this accepted principle of Amer-
ican jurisprudence. It will do no good for us to assert that our
action is reasonable or for others to brand it as arbitrary. The pro-
priety of what we do here will, as always, be determined by the judi-
cial application of legal principles to objective facts. We will not
trines of the Supreme Court take the case would not necessarily mean that we should
waste the time of Feder al officials or expend Federal funds to proceed with such cases.
That was the practice under the Wagner Act and there was nothing in our opinion in
the legislative history of the Taft-Hartley Act to require a change, with the possible
exception of some variation in secondary boycotts and possibly jurisdictional dis-
putes as well.
The general counsel, looking at it from his view of the law, has taken the posi-
tion, with which I have aheady indicated I cannot agree, that is, that it is the busi-
ness of his office to step into every case, no matter how small, in any part of the
United States, provided the constitutional power exists.
496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be so presumptuous as to predict the ultimate decision, but we would
not have agreed to these modifications had we not been convinced
that they were reasonable and proper.
The repeated accusations running through the separate opinions of
both Mr. Murdock and Mr. Peterson that our policy determinations
are arbitrary and capricious can only be intended to belabor the in-
correct premise that the 1950 standards were reached by logical
syllogism and mathematically provable computations. As stated
above, and as the dissenters agree, the Board in 1950 explained its
various fixed standards in terms of effectuating the policies of the
Act and of distinguishing between commercial operations having a
pronounced impact on interstate commerce and others which were
intrinsically local. This was the only explanation offered by the Board
for its action at that time, and, indeed, it was the only honest ex-
planation the Board could have given. Our modifications of the
1950 standard are not to be taken as a present finding that the Board
then acted unreasonably, arbitrarily, or "categorically," as Mr. Peter-
son now charges us with doing. Our decision today is no different
in kind, and therefore no less proper, than that of the 1950 Board.
This is shown by Mr. Peterson's own admission that one of the im-
portant criteria utilized in reaching the 1950 plan was "the relative
importance to the national economy of enterprises having intrinsically
local characteristics as against those having a substantial impact
upon commerce." Reasonable persons can disagree as to where the
line should be drawn, without branding the prevailing view as arbi-
trary, and certainly without impugning by innuendo the motives
behind it.
While we do not adopt his proposed standards, we find no inher-
ent fault in Mr. Peterson's opinion that the interstate portion of a
local trucking operation should be $50,000, instead of $100,000; or
that the direct outflow and indirect inflow standards should be in-
creased, but only to $50,000 and $100,000, respectively. Nor do we
believe that he, and Mr. Murdock, were "dogmatic" in their numer-
ous decisions over the years to assert jurisdiction when there was
$500,000 direct or $1,000,000 indirect inflow, but to refuse jurisdiction
in cases where the direct inflow was $499,000 or the indirect $999,000.
The superficial appearance of arbitrariness arising in particular
cases under the 1950 plan was never a matter of concern to the Board,
and should not have been. The impact of such standards on indi-
vidual cases was the necessary consequence of applying fixed and
predetermined standards to the varying business operations of our
industrial establishments. If, in the considered judgment of the
Board, flow of goods out of a State in the sum of $25,000 was suffi-
cient proof of pronounced impact upon commerce, but less than
$500,000 flow into the State was "insufficient" we are not willing to
BREEDING TRANSFER COMPANY 497
say now that their failure to explicate the "criteria utilized" in for-
mulating these particular standards, made their action arbitrary and
capricious. Arbitrariness is more likely to arise in the application
of rules rather than in their making.
Mr. Peterson also suggests that, in decisions made between 1950
and the present, no "trite" phrases were used. This is true only in
the sense that, in each instance the lead decisions of the 1950 plan
were cited without comment. We note, however, that the rationale
of those lead cases justified the various standards in terms of sub-
stantial impact of commerce or intrinsically local character, and, of
course, the courts affirmed the Board's proper exercise of discretion in
similar language. Similar phrases do not become trite or unique de-
pending upon who happens to employ them.
Like our colleagues we believe that to the maximum extent possible,
policy determinations of this kind, which the statute makes manda-
tory upon us, are best decided on the basis of exhaustive study and
research, both with respect to statistical data and to other relevant
considerations. It is for this reason that issuance of our jurisdic-
tional standards was long delayed pending the completion of a com-
prehensive study made by a committee of legal assistants which cul-
minated in a very extended report analysis of hundreds of cases before
the Board this year and of information available from many other
sources. Our dissenting colleagues' assertions to the contrary, our
new standards are in a large measure a result of a careful study and
consideration of the many valuable analyses contained in those com-
mittee reports. This is not to say that our final decision was not ulti-
mately one of policy and of considered judgment by the Board Mem-
bers, themselves. By their very nature the standards which we now
announce cannot be proved scientifically like mathematical problems.
In making these modifications, we have given due consideration to
all of the criteria spelled out by the Board in 1950, including (1) the
problem of bringing the caseload of the Board down to manageable
size, (2) the desirability of reducing an extraordinarily large caseload
in order that we may give adequate attention to more important cases,
(3) the relative importance to the national economy of essentially local
enterprises as against those having a truly substantial impact on our
economy, and (4) overall budgetary policies and limitations. If one
of the inevitable consequences of our action is to leave a somewhat
larger area for local regulation of disputes, we do not share our col-
leagues' apparent view that this is a sinister development. IWe do
say, however, that a desire to establish broader State jurisdiction is in
no wise a factor in our decision. We are concerned here solely with
the problem of defining the limits of our jurisdiction pursuant to the
discretionary power vested in us by the Congress.
338207-55-vol. 110--33
498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Member Peterson's attack on the new standards winnows down to
a disagreement as to precisely where the line should be drawn. The
charge of arbitrariness which he levels at our standards applies equally
to his, or indeed to any that the hand of man might devise. But, as
Mr. Justice Holmes once aptly stated, "Yet, when you realize you are
dealing with a matter of degree you must realize that reasonable men
may differ widely as to the place where the line should fall." Member
Peterson agrees that a line must be drawn, and admittedly there is no
"mathematical or logical way of fixing it precisely." Disagreement,
however strongly expressed, with our conclusions, is not enough to
demonstrate that we shot so wide of the mark as to brand our action
arbitrary and capricious.
It is frequently wise to test the validity of theoretical agreements
by reference to practical facts. Accordingly, it is appropriate to look
at the particular business involved in this case, over which our dis-
senting colleagues insist that we should assert jurisdiction.
This Employer is a small, local trucker whose only connection with
interstate commerce grows out of the fact that, over a full year's opera-
tion, he did $8,400 worth of local hauling to and from the railroad
station. He has 6 trucks and employs 4 drivers. His total annual
business in 1953 was about $26,500. His trucks never cross the State
line. This Employer is an "essential link in interstate commerce" to
about the same extent as a taxicab driver who occasionally picks up
passengers at the railroad station and drives them to their homes or
places of business. His business is truly local, if that term any longer
has real significance.
It is important to note, moreover, that we have not excluded all such
local hauling firms, as we might reasonably have done. All that we
have done is to require that firms of this kind do an annual business
with interstate carriers in the amount of $100,000 before we will assert
jurisdiction. This, in our view, is a minimal figure and one which
certainly will not exclude from the purview of the statute any labor
dispute which has a substantial effect on interstate commerce.
In establishing this particular jurisdictional test, as is true of all
others, we have attempted to apply a reasonable rule measured by the
probable impact of a labor dispute on interstate commerce. Admit-
tedly, this dollar volume test (which incidentally is characteristic of
the 1950 plan) is an imperfect standard, but it is nonetheless a precise
and meaningful one. It represents our best judgment, arrived at after
months of consideration, as to where the line should be drawn.
Member Murdock's contention that the new standards will effect a
"wholesale slash" in the Board's jurisdiction is, assertedly, predicated
upon "studies made by the Board." Presumably Mr. Murdock refers
to the study and analysis made by a committee of legal assistants re-
ferred to above. Certain figures set out in the dissent, ranging from
BREEDING TRANSFER COMPANY 499
50 percent to as high as 95 percent in various categories, suggest a
conclusion quite at variance both with the probable result of the
changed standards, and with a fair appraisal of the reasonable im-
plications indicated by the hypothetical survey.
To begin with, at the time of the study, we had not so much as
formulated the standards which we are now enunciating. Rather, the
committee tested different tentative and exploratory proposals against
a number of pending cases. The figures set out in the dissent, there-
fore, have been selected from hypothetical tests which in many respects
bear no relationship to the present plan. Particularly in this inherent
unreliability of the cited figures true with respect to the categories of
cases involving multistate enterprises. And, of course, apart from
the consequent irrelevancy of some of the figures cited, the overall
study contains other hypothetical results in other categories showing
practically no change in the number of cases affected.
Moreover, the studies revealed, as was to be expected, that, tested
against various proposals, some pending cases would definitely be dis-
missed, and that as to many other there was insufficient commerce in-
formation available to resolve the issue either way. Without explica-
tion, Mr. Murdock joined both the known results and the unknown,
and thereby reaches cumulative figures of little significance. An ex-
ample of this are the figures he cites with respect to national defense
cases.
The very high figure appearing in the dissent, when read in context
with the protracted discourse on the rights of individual employees,
creates a gross misconception in another respect. The dissent would
have it that 50 percent to 60 percent of the firms carrying on public
utility functions would be removed from the Board's jurisdiction by
our present change in standards. The purpose of our jurisdictional
changes being to eliminate purely local activities, the true impact of
our change is more intelligently understood in terms of the number
of employees affected rather than by the number of companies ex-
cluded. Even assuming some value in the dissent figures, which al-
ready have been shown to be of little significance, a totally different
picture emerges when the number of employees is considered. In this
respect, the Bureau of Old Age and Survivors' Insurance (OASI)
reports, from a study covering the year 1947, that in the categories
"utilities : electric and gas" and "local utilities and local public serv-
ices, not elsewhere classified," that elimination of the 50 percent of the
units at the lowest end of the size scale would result in elimination of
only 4.4 percent of the total employees." As to "local railways and bus
lines," elimination of the first 50 percent of the units would cut off but
4 We use this data, and the remaining 0A51 statistics , with the assumption that there
is a positive correlation between gross revenue and number of employees , an assumption
that, under the circumstances of our economy , seems eminently reasonable.
500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2.2 percent of the total employees. Referring to newspaper publishers,
the dissent says, again with figures already shown to be totally unre-
liable, that 65 percent to 90 percent of the companies would be lost.
Again, the same OASI source, with a study for the year 1951, reports
that if the 65 percent level of elimination is taken, no more than 8 per-
cent of the total employees in this area are eliminated.
Clearly, then, the net effect of our policy determination upon em-
ployees, if any generalization can be made now at all, is markedly dif-
ferent than that suggested by the dissent. By the same token, these
same figures only serve to emphasize once again the stress that our
new standards place upon removal of truly local operations from the
proper bounds of the Board's jurisdiction.
A final clarification is in point. It must be remembered that all
these figures, both those in the dissent in terms of companies and those
,of the OASI reports in terms of employees, include all those firms or
employees which, even under the Board's 1950 plan, would also have
fallen outside the Board's jurisdiction. Indeed, in the field of news-
paper publishing a not inconsiderable number of newspapers have
always been beyond the reach of our jurisdiction entirely because of
the lack of legal jurisdiction, apart from questions of policy.
Considering all the information available to us, bearing in mind
the fact that the mass industries throughout the country in which the
vast majority of workers are gainfully employed are in no wise affected
by these changes, we judge that the changes now made in jurisdictional
standards will reduce the Board's caseload by no more than 10 percent,
and in terms of employees will affect no more than 1 percent of the
total number of employees subject to the broadest reach of the Board's
legal jurisdiction.
As the Employer's operations do not meet the new minimum re-
quirement set forth above, we shall not extend our jurisdiction here.
We shall instead dismiss the petition.5 Accordingly, we find that
no question affecting commerce exists concerning the representation
of employees of the Employer within the meaning of Section 9 (c) (1)
and Section 2 (6) and (7) of the Act.
[The Board dismissed the petition.]
MEMBER MURDOCK, dissenting :
On July 1 and 15, a majority of this Board issued press releases 6
unaccompanied by any issued decisions, which substituted compre-
hensive new jurisdictional standards for those which have been in
effect since 1950. These new standards accomplished a drastic cur-
6 See San, Jose City Lines , Inc., 106 NLRB 1167
6 N L R B Announces Changes in Standards for Its Exercise of Jurisdiction , National
Labor Relations Board Press Release No 445, July 1, 1954; N. L. R B Announces New
Standards for Exercise of Jurisdiction , National Labor Relations Board Press Release No.
449. July 15, 1954.
BREEDING TRANSFER COMPANY 501
tailment in the area of protection afforded by the Labor Management
Relations Act of 1947 as reflected in the jurisdictional standards pre-
viously followed by the Board. Although I strongly disagreed with
this deep slash in the Board's jurisdiction, no appropriate vehicle for
a judicial dissent has been available to me until the Board began to
announce and explicate these new standards, one by one, in Board
decisions such as this. I am therefore utilizing this decision not only
to dissent from the refusal to assert jurisdiction in this case, but also
to state my basic disagreement with both the purpose and effect of
the new jurisdictional standards to severely limit the jurisdiction of
the Board, and with the legality thereof.
In summary, it is my firm conviction that the new standards are in
basic conflict with the Act and the legal responsibilities which it im-
poses on this Agency. They are premised upon the view that there
should be a reallocation of authority between the Federal Govern-
ment and the States in the regulation of labor relations, with the
Federal Government and this Board surrendering jurisdiction in wide
areas. Such action inescapably entails a usurpation of legislative
power by an administrative agency, contrary to the principle of sepa-
ration of powers under our constitutional system. There is no neces-
sity or justification for this retrenchment based upon budgetary
limitations or other administrative necessities.
The majority opinion views any protest against a wholesale slash
in the Board's jurisdiction, and particularly this one, as constituting
a contention that this Agency must assert jurisdiction to the furthest
possible extreme. This misconstruction of my views completely misses
the point and serves only as a straw man to divert attention from the
vital issues involved. I do not, as stated in the majority opinion,
take "the strong view that this Board has no legal or moral right to
self-impose any restrictions upon its activities." I do not "question
the legal authority of the present Board to modify its jurisdictional
standards," and the attempt to make it appear that there is inconsist-
ency between my approval of the 1950 plan and my objections to the
new standards is misplaced. My complaint is not with the fact of
modification but against the purpose and effect of the new standards.
The majority did not frame the 1954 standards on the same considera-
tions as those involved in framing the 1950 standards. The majority
have not made a deep slash in existing jurisdiction standards because
limitations of funds or personnel preclude the Board's handling cases
in the excised area. It made the slash in jurisdiction because of its
view that there should be a reallocation of authority between Fed-
eral and State Government' with authority in the excised areas sur-
rendered to the States. The Board has, of course, never asserted juris-
diction in every instance where the statute granted it. But we have
asserted that jurisdiction to the extent that our funds and staff per-
502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mitted. In 1950, for purposes of clarity and consistency, we drew up
a comprehensive jurisdictional plan which preserved limits based
upon 15 years of case-by-case findings affirmed by the courts as to
where unfair labor practices would have the greatest impact upon
commerce. But the 1950 plan, unlike the present wholesale slash, did
not seriously decrease (or increase) the scope of the Board's existing
operations nor did it attempt to evade the job Congress gave us to do
to the extent that our funds and staff would permit. To equate the
1950 plan, its motivations and its results with the present slash, is to
say that putting one's house in order is equivalent to tearing part of
the structure down.
The importance and grave consequences of the new jurisdictional
standards of the Board can scarcely be overstated. Hundreds of thou-
sands of employees and employers are now deprived, by fiat of this
Board, of the protections and restraints afforded by both the Taft-
Hartley Act and the Wagner Act which it amended. Bluntly speak-
ing, and there is reason for bluntness, these employees and labor or-
ganizations in these areas of industry are now left free to commit each
and every one of the unfair labor practices condemned in those
statutes as dangerous to the economic and industrial health of this
nation. Such practices will now receive neither notice nor action on
the part of this Agency. The problems of representation for these
employees-problems which we have learned through hard experi-
ence mature into the cancer of industrial warfare and problems which
this Board was especially established to solve by peaceful means-will
be settled in the future, if at all, only by contestants armed with the
weapons of strike, lockout, boycott, blacklist, and the like.
There is no question but that the underlying consideration dictat-
ing the majority's action in adopting the new jurisdictional stand-
ards is one far removed from a legal determination of the effect of
certain activity upon commerce and from proper policy considera-
tions. The slash in jurisdiction now consummated has been frequently
promised and predicted in public speeches of members of the majority
during the past year in keeping with an announced belief in the phi-
losophy of returning a greater share of Federal authority to State
and local governments. Typical of such utterances are the following :
The one thing this nation needs more than anything else to main-
tain its vigor and strength is a revival of interest by local govern-
ment in tackling and solving the problems of their local people.
That is why I strongly advocate a gradual but nevertheless marked
withdrawal of the hand of the NLRB from strictly local disputes?
[Emphasis supplied.]
4 Address of Chairman Guy Farmer , NLRB, before the Joint Conference of The Indus-
trial Relations Committees of the Edison Electric Institute , The Southeastern Electric
Exchange , and the Southwestern Personnel Gioup, New Orleans, Louisiana , January
21, 1954.
BREEDING TRANSFER COMPANY 503
. . . regardless of the legal scope of the commerce clause, the
Federal Agencies should, as a matter of self restraint, impose
limits on their own power and thus provide the opportunity for
local problems to be settled on a local basis by the citizens of the
community in which those problems arise.'
The first of these [actions which should be taken by the new
members] is to limit the jurisdiction of the Board-to free it from
the consideration of hundreds, if not thousands, of cases which
are markedly local in nature and in impact. Such cases should,
in keeping with our American system of constitutional govern-
ment, be dealt with by the localities and the states.'
This is, after all, a Federal State, and it is the underlying
philosophy of our government, and I might add of our President,
that the states and communities not only should, but must, assume
and discharge the responsibility of local affairs. I believe that
this agency must use sound restraint in the exercise of its juris-
diction. I believe that this agency should assist this administra-
tion in pulling back the outer reaches of federal bureaucracy, and
thus encourage rather than impede the development of our Com-
m unities and our states.10 [Emphasis supplied. ]
Against the background of these pronouncements, I have read with
considerable amazement the statement in the majority opinion that a
desire to transfer more authority over labor relations to the States "is
in no wise a factor" in the framing of their new standards; likewise
their assertion that the new restrictive standards were arrived at on
the basis of four named criteria, including "an extraordinarily large
caseload" and "budgetary policies and limitations." I cannot recon-
cile these latter statements with the earlier pronouncements or with
recent Board history. Let us look at the record of that history, subse-
quent to the speeches just quoted, in more detail than the bits which
are referred to in the majority opinion.
As indicated in the majority opinion, two proposed new jurisdic-
tional plans, of a highly restrictive nature, were submitted for con-
sideration of the Board last March. On April 1, I sent a memo to my
colleagues pointing out that before considering specific substitute
jurisdictional standards there were certain basic questions which
merited serious discussion by the Board :
What is the necessity or reason for making a radical change in
our present plan to accomplish a deep cut in our caseload? Have
s Chairman Farmer before the National Conference of Business Paper Editors, Wash-
ington. D C , October 21, 1953, after noting that the jurisdiction of the Board was to be
reexamined
0 Member Rodgers before the American Bar Association, Atlanta, Georgia, March 15,
.1954.
10 Member Rodgers before the National Retail Dry Goods Association , New York, New
York , January 12 , 1954 , in noting that "Probably the most pressing administrative prob-
lem confronting the Board at this time is the problem of jurisdiction."
504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
we suffered such a serious cut in our appropriations? Do we have
a case backlog in the Secretary's office more than our staff can
handle? Does the General Counsel have too many cases in the
field to permit processing with reasonable expedition?
I likewise pointed out therein that if factors of the kind mentioned did
not require a reduction in the Board's jurisdiction, there was a serious
question as to the Board's power deliberately to refuse to exercise its
jurisdiction for other reasons. It has been apparent, however, that
the majority has little interest in exploring and discussing such cri-
teria to determine if there was an actual need to cut the Board's juris-
diction. It is plain that in their zeal to get on with the business of
cutting the Board's jurisdiction, there is no patience with any con-
sideration of factors such as these which might create obstacles to
that goal.
It was agreed on my suggestion to have the committee of legal as-
sistants referred to in the majority opinion appointed to make a
report on jurisdiction as had been done prior to the adoption of the
1950 plan. Although that committee made a report with a lengthy
appendix, its report did not explore or discuss the criteria mentioned
above or the need to cut the Board's jurisdiction, or recommend any
jurisdictional plan. Rather the committee acted on the well-founded
assumption that a majority of the Board desired to make a cut in
jurisdiction and the main thrust of its report was directed to a factual
study of what the effect of each of the two proposed plans would be
on dismissals of cases as applied to 413 cases then pending at Board
level. (In addition it did contain information on such matters as
legislative history bearing on assertion of jurisdiction, prior legisla-
tive proposals to curtail jurisdiction, and a limited discussion of the
1950 plan.)
In the latter part of June and early July, a large accumulation of
cases involving jurisdictional issues were scheduled for Board agendas.
The votes on these cases were combined to become the majority's
"plan" as announced in the press releases of July 1 and 15. In the
decision of these cases, so far as I am aware, no more consideration
was given to the question whether there was a need to reduce the
Board's jurisdiction in the light of the criteria recited in the ma-
jority opinion or in my memo of April 1 than had been given to these
questions prior to the committee's report or in the committee's report.
Plainly one cannot disregard the public pronouncements by members
of the majority in advance of restricting the Board's jurisdiction as
to their purpose in doing so, in considering the statement as to their
motivation which Member Peterson has noted was made for the first
time in the latest revised majority opinion in this case 3 months after
the accomplishment of the deed.
BREEDING TRANSFER COMPANY 505
I do not question the sincerity of my colleagues' publicly stated
beliefs that a reallocation of authority over labor relations between
the Federal and State Governments would be good for -the country
nor do I pretend to discuss the abstract wisdom of such a move. I
do question that such a decision is theirs to make rather than for the
Congress to determine. As the Supreme Court stated, in answer to
a contention in a case where public utilities were held within the juris-
diction of this Board, that "predominantly local problems are best
left to local government authority for solution,"-"In our view, these
questions are for legislative determination and have been resolved by
Congress adversely to respondents." 11 [Emphasis supplied.]
In brief outline, the new jurisdictional rules will result in the
Board's refusal to entertain and process representation or unfair labor
practice cases involving any of the employees of the following
employers :12
1. Employers with less than $50,000 in direct sales to out-of-State
purchasers.
2. Employers with less than $100,000 in sales or services to other
firms which do interstate business.
3. Employers whose businesses affect national defense but who have
less than $100,000 of national defense sales furnished under Govern-
ment contract.
4. Radio and television stations with less than $200,000 gross an-
nual revenue.
5. Newspapers with less than $500,000 gross annual income.
6. "Local" power, gas, water, and public transit companies with less
than $3,000,000 gross annual income.
7. Interstate public transit companies with less than $100,000 gross
annual income.
n Amalgamated Association of Street , Electric Railway and Motor Coach Employees of
America, Division 998 v. Wisconsin Employment Relations Board, 340 U S 383 at 397.
12 For purposes of compaiison, the following standards were set forth by the Board in
1950 for the assertion of jurisdiction.
At that time the Board stated that it would assert jurisdiction over
(a) All employers producing or handling goods destined for out-of-State shipment
or performing services outside the State if the goods or services amounted to at
least $25 , 000 annually in value
(b) All employers having purchases of $500,000 directly or $1,000,000 indirectly
from out-of-State sources
(c) All employers furnishing goods or services to the firms listed above or cer-
tain others to the value of $50,000 annually.
(d) All employers whose volume of business, while not meeting the entire mini-
mum amounts listed above, nevertheless had a large enough percentage of the mini-
mum amount in each to have a comparable though cumulative effect upon commerce.
(e) All instrumentalities and channels of interstate commerce, public utility and
transit systems , integral units of multistate enterprises such as chain stores and
franchised dealers in automobiles , establishments located in areas of plenary juris-
diction, and establishments whose operation substantially affect national defense
The reasons for the establishment of these criteria , which, of course , are now supplanted,
are discussed hereinafter.
506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8. All public restaurants , whether or not servicing instruments of
interstate commerce.
9. Intrastate trucking companies which are links in interstate com-
merce but do less than $100,000 of business a year for other enterprises
over which the Board will assert jurisdiction.
10. Retail and service stores, whether or not members of an inter-
state chain , except under very limited circumstances.
11. Other multistate enterprises except where the individual plant
meets the criteria noted above under 1 and 2, or has $500 ,000 direct
or $1,000,000 indirect inflow of purchases , or the chain as an entirety
has direct interstate sales of $250,000.
12. Most franchised retail outlets for manufacturers regardless of
their integrated position in a nationwide distributing system.
13. General or public office buildings regardless of the essential
nature of the services that the latter may render to tenants engaged
interstate commerce.
This compressed outline, of course, does not list the many and
varied subsidiary rules under which employers, ostensibly within
these new commerce standards , will nevertheless be excluded from the
Board's jurisdiction . Nor does it detail the confusion and contra-
dictions implicit in the complexity of many of these standards or
note the unexplained alterations which have been made in a number
of these standards since they were first announced in July. These
matters must and will be the subject of comment in other "lead"
decisions which will follow as to the remainder of the new standards.
The comparatively brief summary of the new criteria Which I
have given , however, affords some idea of the slash that has been
made. Statistics are available , in some instances , to document the
severity of that slash . As the majority decision notes, a number of
proposed jurisdictional standards were checked by a committee of
legal assistants against a group of 413 cases pending at the Board
this spring . 13 Among the proposed standards were a number that
were the same or elosely parallel to particular standards thereafter
adopted by the Board majority, which makes pertinent the statistics
as to the dismissals which would result therefrom. Thus, it was
ascertained that at least 50 percent of gas, water , power, and public
transit firms over which the Board had previously asserted jurisdic-
tion would be excluded as a result of the $3,000 ,000 receipts test actu-
ally adopted by the Board, while another 10 percent would be in
13 The sample group of 413 cases corresponded almost exactly to the Board's caseload
in the past 2 years as to the percentage and types of industry or commerce represented.
The survey indicated that 50 percent of the Board's jurisdiction under the 1950 plan
would be affected by the standards being proposed; 25 percent being certain of dismissal
while another 25 percent were questionable as to assertion of jurisdiction. While some
of the proposed standards were, as the majority notes, more restrictive even than those
adopted in July, others were the same or less restrictive.
BREEDING TRANSFER COMPANY 507
doubt. This conclusion is affirmed by Federal Power Commission
data showing that 79 percent of the electric utilities in the country
have less than $3,000,000 in yearly receipts. Yet these public utilities
furnish admittedly vital services and employ more than 690,000 em-
ployees. The committee survey further showed that a requirement
of $100,000 yearly receipts from national defense work (even apart
from the additional defense requirements adopted by the majority)'
would exclude at least 20 percent of those firms previously under our
jurisdiction as business substantially affecting the national defense
and would make 40 percent more possibly subject to dismissal. More-
over, while the survey did not include all the highly complex and
restrictive standards finally adopted as to multistate enterprises, the
survey did disclose that a comparable standard would eliminate from
55 to 90 percent of those enterprises which are part of multistate
organizations from our jurisdiction despite the very interstate char-
acter of their organization. This is vividly shown by the admitted
exclusion of practically all franchised dealers under the revised multi-
state standards although just 1 part of that group, the retail auto-
mobile field, alone employs more than 520,000 workers and does more
than $16,000,000,000 of business annually. In each of the foregoing
areas, contrary to the alleged "clarification" of our data by the ma-
jority, percentage of dismissals cited above is a percentage of those
enterprises previously under the Board's jurisdiction and not a per-
centage of the total enterprises in that field.
Even apart from these figures available from the committee's survey,
however, other statistics confirm the great extent to which the Board's
jurisdiction has been cut. According to statistics furnished by the
Federal Communications Commission, approximately 80 percent of
the nation's radio stations employing about 50 percent of the workers
in that field will be excluded from the Board's jurisdiction as a result
of the adoption of the $200,000 yearly receipts test for such enterprises
announced in the July press releases. And other data, gratuitously
labeled "totally unreliable" by the majority, but prepared by the
Board's Industrial Analysis Branch, shows that 65 percent of daily
newspapers and 95 percent of the weekly newspapers in the country
will be excluded from the Board's jurisdiction under the new stand-
ards. All this despite the obvious status of newspapers and radio
stations as instrumentalities and channels of commerce and the tre-
mendous importance these media have upon the flow of commerce by
reason of the billions of dollars spent each year in the advertising of
nationally distributed products.
Unfortunately, I have no way of accurately determining the total
number or percentage of employers and employees now shown of the
Act's protection and restraints. On the basis of the spot statistics in
508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the industries noted above, however, it seems probable that at least 25
percent and perhaps as much as 331/3 percent of our past jurisdiction
is now eliminated. The majority, however, deprecate these findings
and aver that only a miniscule 1 percent of the "total number of em-
ployees who could possibly be subject to the broadest reach of the
Board's legal jurisdiction" will now be excluded together with 10 per-
cent of our past caseload. This ultimate conclusion is projected from
the employment figures in only 2 industries-utilities and news-
papers-which show an alleged exclusion of between 2 percent and 8
percent. How these can be projected into 1 percent for all industries
is wholly unexplained. If, however, contrary to all indications, their
1 percent guess is correct, then indeed the mountain has labored
mightily to bring forth a mouse and at the cost of tremendous confusion
and delay in Board work. But I note that my colleagues, in their
highly selective justification of that estimate, based upon OASI fig-
ures, do not take any note of the OASI figures showing an exclusion of
50 percent of all employees at radio stations or the half million retail
auto employees, or the hundreds of thousands of employees in retail
service, office building, interstate and intrastate transit, public restau-
rant, and other occupations who are now totally or partially excluded
by the new standards. Nor can I accept the implied premise that the
number of employees in a plant is the test of whether or not jurisdic-
tion should be asserted when the Congress, in enacting the statute,
purposely rejected that test and stated that "The rights of employees
should not be denied because of the size of the plant in which they
work." But in any event, it is not the exact number of enterprises and
employees now to be excluded which is the basic issue but the justifica-
tion for any curtailment of jurisdiction which must be established.
There are two approaches to the general question of the Board's
assertion of jurisdiction. The first is concerned with the intent of the
legislature which enacted this statute and with the legal obligations
and grant of power which the statute encompasses. The second ap-
proach, greatly dependent upon the findings of the first, is concerned
with the extent of the Board's administrative discretion in curtailing
our jurisdiction and the proper criteria on which such discretion must
be based. I submit that careful analysis of both of these approaches
compels the conclusion that the new standards are not defensible.
The initial issue which arises is whether the Act itself contains any
mandate as to the extent of the Board's jurisdiction. It is a vital issue
for the simple reason that this Board, as is true of any quasi-judicial
administrative agency, is bound by the limits of the authority granted
in the statute creating it and is under an affirmative mandate to exer-
cise the duties set forth therein. Congress, in the Act, outlaws unfair
labor practices "affecting commerce." The key term "affecting com-
BREEDING TRANSFER COMPANY 509
coerce" is further defined in Section 2 (7) of the Act as meaning "in
commerce, or burdening or obstructing commerce or the free flow of
commerce, or having led or tending to lead to a labor dispute burden-
ing or obstructing commerce or the free flow of commerce." This basic
delineation of the area in which the National Labor Relations Board
not only may act but is under an affirmative direction by Congress to
act was first set forth in the original Wagner Act, was continued with-
out any alteration in the Taft-Hartley amendments of 1947 and has
thus remained constant and unchanged by Congress for the 19 years
this Agency has existed.
Almost from the day that the National Labor Relations Board was
established, the question of which employers are encompassed within
this statutory definition has been before the Board and the courts.
The ensuing history of litigation on this point has spelled out the
answer in considerable detail. That history makes it clear that Con-
gress, in enacting both the 1935 and 1947 statutes, sought to confer
the full extent of its constitutional power to prevent unfair labor
practices. As stated by the Supreme Court : "
By that Act, Congress in order to protect interstate commerce
from the adverse effects of labor disputes has undertaken to regu-
late all conduct having such consequences that constitutionally it
can regulate. . . . Again, half a dozen enactments, other than
the National Labor Relations Act, are sufficient to illustrate that
when it [Congress] wants to bring aspects of commerce within
the full sweep of its constitutional authority, it manifests its pur-
pose by regulating not only "commerce" but also matters which
"affect," "interrupt," or "promote" interstate commerce. . . . In
so describing the range of its control, Congress is not indulging in
stylistic preferences; it is mediating between federal and state
authorities, and deciding what matters are to be taken over by
the central Government and what to be left to the States. . . .
And so in this Act, unlike some federal regulatory measures, .. .
Congress has explicitly regulated not merely transactions or goods
in interstate commerce but activities which in isolation might be
deemed to be merely local but in the interfacings of business across
state lines adversely affect such commerce. [Emphasis supplied.]
and, again : 15
The unfair labor practices which the Act purports to reach are
those affecting commerce. . . . In determining the constitu-
tional bounds of the authority conferred, we have applied the well
"Polish National Alliance of the Uni ted States of Noith America v. N. L. R. B, 322
U S. 643 at 647
" Co-nsolidated Ldison Co v. Al. L R B , 305 U 8 197 at 222.
510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
settled principle that it is the effect upon interstate and foreign
commerce, not the source of the injury, which is the criterion.
and, again : 16
It has been settled by repeated decisions of this Court that an em-
ployer may be subject to the National Labor Relations Act al-
though not himself engaged in commerce. The end sought in
the enactment of the statute was the prevention of the disturbance
to interstate commerce consequent upon strikes and labor disputes
induced or likely to be induced because of unfair labor practices
named in the Act. That those consequences may ensue from strike
of the employees of manufacturers who are not engaged in inter-
state commerce where the cessation of manufacture necessarily
results in the cessation of the movement of manufactured goods
has been repeatedly pointed out by this court. N. L. R. B. v.
Jones c6 Laughlin Steel Corp., 301 U. S. 1, 38-40; N. L. R. B. v.
Fruehauf Trailer Co., 301 U. S. 49; N. L. R. B. v. Friedman-Harry
Marks Clothing Co., 301 U. S. 58; Santa Cruz Fruit Packing Co.
v. N. L. R. B., 303 U. S. 4531463 et seq.
Apart from the clear intent of Congress not even to require direct
participation in interstate and foreign commerce as a basis for asser-
tion of the Board's jurisdiction, there is also ample evidence from the
legislative history that the size or volume of the individual enter-
prise was not to be decisive. A proposal to exclude employers of less
than 10 employees from the jurisdiction of the Board, received com-
plete rejection from the Congress which enacted the 1935 Act. The
Senate committee report 17 on this proposal notes that :
.. . the Committee decided not to exclude employees working for
very small employer units. The rights of employees should not be
denied because of the size of the plant in which they work. Section
7 (a) imposes no such limitation. And in cases where the organi-
zation of workers is along craft or industrial lines, very large
associations of workers fraught with great public significance
may exist, although all members work in very small establish-
ments. [Emphasis supplied.]
The same Senate report goes on to state very clearly that the limi-
tation of jurisdiction to activities "affecting commerce" sets the line
which Congress deems the appropriate test for excluding enterprises
and disputes which may properly be deemed essentially local.
Furthermore, it is clear that the limitation of this bill to events
affecting interstate commerce is sufficient to prevent intervention
11 N. L R. B v Fainblatt, 306 U. S. 601 at 604
17 Senate Committee Report No . 573 on S . 1958, Senate Committee on Education and
Labor, 74th Congress, 1st Session.
BREEDING TRANSFER COMPANY 511
by the Federal government in controversies of purely local
significance.
and the Supreme Court has clearly recognized this."R
The language of the National Labor Relations Act seems to make
it plain that Congress has set no restrictions upon the jurisdiction
of the Board to be determined or fixed exclusively by reference
to the volume of interstate commerce involved. . . . Examining
the Act in the light of its purpose and of the circumstances in
which it must be applied we can perceive no basis for inferring
any intention of Congress to make the operation of the Act depend
on any particular volume of commerce affected more than that to
which courts would apply the maxim de minimis. There are
not a few industries in the United States which, though con-
ducted by relatively small units, contribute in the aggregate a vast
volume of interstate commerce. Some, like the clothing industry,
are extensively unionized and have had a long and tragic history
of industrial strife. It is not to be supposed that Congress, in its
attempted nationwide regulation of interstate commerce through
the removal of the causes of industrial strife affecting it, intended
to exclude such industries from the sweep of the Act. [Empha-
sis supplied.]
The cited authority, to this point, has been concerned with the in-
terpretations and legislative history of the commerce clause as ini-
tially set forth in the National Labor Relations Act of 1935. Indeed
this is necessary, for, when that Act was amended in 1947 to become
the present Labor Management Relations Act, the language of these
sections dealing with the Board's jurisdiction remained constant and
the reports of both the House and Senate committees state plainly
that the terms, "employer," "commerce," and "affecting commerce" as
used in the 1935 Act, were to remain unchanged in meaning.19 It is
pertinent to note, moreover, that the chief sponsors of the 1947 legis-
lation were well aware of the necessity of retaining comparatively
small employers under the jurisdiction of the Board where unfair
labor practices committed by or against them would, in fact, affect
commerce. In the course of debate on the bill, Senator Taft, coauthor
of the successful amendments, noted that,20
I myself feel that the larger employers can well look after them-
selves, but throughout the United States there are hundreds of
78i . L R B. v Fasnblatt, et al , supra
in House Report No 245 on H R 3020, p. 18, House Committee on Education and L, her,
80th Congress, 1st Session , Senate Report No. 105 on S 1126, pp 18. 19, Senate Com-
mittee on Labor and Public welfare, 80th Congress, 1st Session, House Conference Report
No 510 on H R 3020, p 33, 80th Congress, 1st Session
20 93 Daily Congressional Record 3950, April 23, 1947 See also the views of Senators
Taft. Ball, Donnell, and Jenner, all proponents of the legislation, as expressed in Senate
Report No. 105 on S 1126, Supplemental Views, p. 45,
512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thousands of smaller employers, smaller businessmen, who, -under
the existing statutes, have come gradually to be at the mercy of
labor-union leaders, either labor-union leaders attempting to or-
ganize their employees, or labor-union leaders interfering with
the conduct of their business for one reason or another.
It is also worthy of note that the legislative history of the 1947
amendments rather than manifesting any intent for the Board to con-
tract its jurisdiction, on the contrary shows a congressional intent for
the Board to extend its jurisdiction into areas in which it- had not
previously asserted jurisdiction. Thus, prior to 1947 the Board had
not taken jurisdiction over the building construction industry. This
self-imposed restriction probably stemmed from a combination of fac-
tors-the industry was highly organized and the limited budgets and
personnel of the Board could better be used to protect the right of self-
organization and collective bargaining in other areas; also, there was a
disposition to view this field as "essentially local" despite an inflow of
materials from out of State. But the legislative history of Section
8 (b) (4) of the Act showed that this industry was one of those par-
ticularly subject to the secondary boycott and closed shops, and re-
flected the congressional intent to eliminate such practices therein.21
Accordingly, since 1947 the Board has abandoned a policy of not tak-
ing jurisdiction in the building construction field, and, hearkening to
congressional intent, has taken jurisdiction, with the result that cases
therein account for a very substantial part of the Board's caseload.
I have noted above what was the recorded intent of both the 1935
and 1947 Congresses and the fact that the Act was passed "with full
appreciation of the extent of its coverage." A further important
point to be observed is this. From the date the National Labor Re-
lations Board was established to the present time, there has been no
congressional revision of the statutory coverage of the Board's juris-
diction despite the introduction of numerous bills which would have
excluded the same enterprises now eliminated from our jurisdiction
by the action of the majority. The most recent of these efforts by
individual members of the Congress to cut down the scope of Board
jurisdiction failed of passage only a few months ago. Despite this
consistent congressional refusal to decrease the Board's jurisdiction,
the majority's drastic action achieves by administrative fiat what
Congress has refused to do by statute. As the Supreme Court has
warned, albeit in reference to another statute, where repeated at-
tempts in Congress have failed to secure a curtailment of Federal
21 See United Brotherhood of Carpenters and Joiners of America, Di•strwt Council of
Kansas City, Missouri, and Vicinity, AFL, 81 NLRB 802 and references to the legislative
history contained therein
BREEDING TRANSFER COMPANY 513
regulht'ory activity, it is both inappropriate and subject to court re-
versal for an administrative agency to unilaterally achieve that end.22
If any lingering doubt could exist as to my conclusion that the
majority's action in divesting the Board of jurisdiction in wide areas
simply to invest the States with the opportunity to regulate labor
relations therein is contrary to the mandate of the Act, Section 10 (a)
supplies a final and incontrovertible answer. In that section 23 Con-
gress specifically dealt with the question whether any part of the au-
thority to deal with unfair labor practices affecting commerce vested
by the Act in the Board might be surrendered to the States. It pro-
vided that only in extremely limited circumstances could the Board
do this and then by an agreement with the appropriate State agency.
It further limited the industries in which it could be done. It further
set forth the all-embracing prohibition against cession of jurisdiction
to States where "the provision of the State or Territorial statute ap-
plicable to the determination of such cases by such agency is incon-
sistent with the corresponding provision of this Act or has received
a construction inconsistent therewith." We are thus confronted with
the considered judgment of the Congress which enacted the Taft-
Hartley Act, that there should be no surrender of the Federal au-
thority now vested in this Board to the States except where a State
has a similar statute whose provisions with respect to the cases ceded
is not "inconsistent with the corresponding provision of this Act."
It is a well-established principle of statutory construction that ex-
pressio unius est exelusio alterius.24 The specification of the par-
ticular circumstances under which cession to States is permitted ex-
cludes all other circumstances from the permitted authority. More-
over, we are confronted with the further fact that in sessions up to and
including the present session of Congress, attempts to liberalize the
circumstances under which this Board could surrender authority to
the States (stemining perhaps from the fact that no State has had a
law since 1947 which would permit cession under Section 10 (a)) have
failed of enactment. S. 1264, a bill introduced by Senator Ives which
would have repealed the 10 (a) limitations on the Board's surrender
22 In Phillips Petroleum Co v. State of Wsscousiia, et al., 74 S Ct 794 , the Court re-
versed a recision of jurisdiction effectuated by the Fedeial Power Commission holding that
"Attempts to weaken this protection by amendatory legislation exempting independent nat-
ural gas producers from federal regulation have repeatedly failed and we refuse to achieve
the same result by a strained interpretation of the statutory language
23 Section 10 (a) reads , in peitrnent part,
Provided, That the Board is empowered by agreement with any agency of any State
or Territory to cede to such agency jurisdiction over any cases in any industry (other
than mining , manufacturing, communications , and transportation except where pre-
dominantly local in character ) even though such cases may involve labor disputes
affecting commerce, unless the piovision of the State or Territorial statute applicable
to the determination of such cases by such agency is inconsistent with the corre-
sponding piovision of this Act or has received a construction inconsistent therewith.
u See Sutheiland , Statutory Construction , Sections 6603, 5822
338207-:5-vol 110-34
514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of its jurisdiction, and specifically provided for State authority to
proceed where the Board declined to exercise its jurisdiction, did not
pass in the last Congress. The action of a majority of the Board in
adopting new jurisdictional standards designed to surrender author-
ity to the States in the face of the prohibitions in Section 10 (a)
which the present Congress has specifically failed to liberalize, re-
sults in a plain circumvention of the provisions of Section 10 (a). It
cannot be made legal by calling it policy or discretion.
In summation, the language of the Act and its legislative history
make it clear that this Board is to protect the entire range of eco-
nomic activity "affecting commerce," from the impact of industrial
disputes. In determining that scope of protection, Congress, both at
the time the Act was passed and in the period since then, has uni-
formly rejected any measure which would reduce it by limitations
based upon size or volume of business. In creating the edifice of a
national labor policy with a Federal agency to protect commerce
within that broad area, the Congress also specifically 'placed strong
prohibitions in the Act against the transfer of that authority to the
States except in a limited area in which Congress prescribed a single
method by which such cession could be accomplished. I view this
background to be of paramount importance since, as a matter of ele-
mentary law, it is the judgment of Congress as expressed in legisla-
tion which is controlling as to our jurisdiction and not such pref-
erences as individual members of this Board might hold from time
to time. Evasion or failure to apply the jurisdictional standard set
forth in the Act must inevitably result in misadministration of the
Act. I submit that this basic standard has not been applied when
the Board, as it does now by majority action, drastically curtails its
jurisdiction without reference or regard to the ensuing effect upon
commerce of unfair labor practices among the excluded enterprises.
I submit that such an action is completely untenable when it seeks to
accomplish the aim of cession without complying with the statutory
restrictions upon such cession.
I turn now to a consideration of what administrative discretion the
Board has in administering the scope of authority granted in the Act.
For lack of a better term this might be termed the "policy" approach
to jurisdiction. By "policy," in fact, we mean nothing more or less
than the administrative implementation of the broad statutory aims
and mandate. The problem arises in the following manner. As is
obvious, the Board's capacity to perform the task of administering
the Act is significantly affected by the appropriations which Congress
makes to do the job. When there are insufficient funds and personnel
with which effectively to cover the entire field of the Board's legal
jurisdiction practical administration requires that the Board expend
BREEDING TRANSFER COMPANY 515
them in such manner as will most nearly effectuate the policies of the
Act under the circumstances of the budgetary limitations. If the
Board cannot as a practical matter deal efficiently and with reasonable
expedition with unfair labor practices and representation questions
in the entire field of its legal jurisdiction, it must concentrate its efforts
on those cases which have a greater effect upon commerce. But this
is not to say that this agency, under the guise of "administrative
discretion" has the authority or the privilege of determining how
much commerce should be protected by the Federal Government in-
stead of how much commerce can be protected with the funds and
personnel available. The question of how much of the Nation's
economic life should be protected was determined by the Congress
when it enacted this statute; it is not the province of members of this
agency to substitute their judgment for that of the legislature.
The necessity for the use of administrative discretion because of
budgetary limitations has been consistent throughout the life of this
Board. The years prior to 1947 were relatively "lean" years of
limited appropriations, budget cuts, and reduced personnel. The
budget never exceeded 41/2 million dollars per year or the personnel
850 employees during this early period. In 1946 when the Board had
the biggest backlog of cases in its history to that time it suffered a
budget cut which required a 20 percent reduction in its personnel.a5
With the passage of the 1947 amendments, however, the Board entered
upon a period of comparatively generous appropriations approxi-
mating 9 million dollars per year and permitting a staff of 1,700
employees. In part, of course, this increase which resulted in appro-
priations and staff being doubled had to be devoted to handling the
new types of cases arising under Section 8 (b) and other new sections
of the Act. The increased appropriations have also permitted, how-
ever, extending in some measure the Board's assertion of jurisdiction
more widely than had been possible in the "lean" years. One example,
already noted above, was the change in policy to assert jurisdiction
in the building and construction industry where the Board had not
previously done so.
The Board, in 1950, adopted and published a set of comparatively
simple basic standards by which it would or would not assert juris-
diction. These neither had the purpose or effect of extending or
cutting the Board's jurisdiction nor of making any appreciable change
therein. Instead they were intended to codify and make uniform the
general principles which the Board had been following to remove the
possibility of inconsistency resulting from a case-by-case approach;
to save the large amount of Board time required by the case-by-case
method; and to let employers, employees, and labor organizations alike
25 See Eleventh Annual Report, NLRB, 1947, p 6.
516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
know with certainty whether the Board would assert jurisdiction over
them. Of 'necessity, this formalization of jurisdictional standards,
into a comprehensive plan continued to reflect the experience of the
previous 15 years in determining which areas of economic activity
had less impact on commerce than others to enable the Board to con-
centrate its still limited though more generous budgets in those areas
where it could do the most effective job of effectuating the purposes
of the Act. They provided a manageable caseload.
It is thus plain that the 1950 jurisdictional standards were estab-
lished-as a policy in practical conformance with the affirmative duties
the statute imposes upon the Board. If the 1950 standards did not in-
clude all enterprises within the scope of our legal jurisdiction, as of
course they did not, it was because the standards themselves repre-
sented the full limit of the Board's capacity to do the most effective
job of effectuating the purposes of the Act with the staff permitted by
the current appropriations ; and the exclusions represented those enter-
prises where industrial disputes would less seriously endanger the
free flow of commerce. In short, they represented a discretion born
of necessity; not a discretion which assumed the substantive powers
of the legislature. The 1950 standards have survived all court tests."
I consider nothing about the 1950 standards to be immutable let
alone as having an origin "on Sinai." To the extent that parts of
Member Peterson's separate opinion may suggest such an inflexible po-
sition on my part, he too misconstrues my position. As earlier stated,
it is not the fact of modification with which I quarrel; it is the purpose
and effect of the new standards which I consider an abuse rather than
an appropriate exercise of administrative discretion. Certainly it is
appropriate for the Board either to increase or decrease its exercise of
jurisdiction as budgetary or other administrative necessities dictate.
But the existence of an area of discretion which may be exercised for
valid reason does not justify its exercise for an invalid reason.
Because the 1950 standards represent the accumulated and consistent
findings of some 15 years reinforced by our experience since 1950, there
is, in my mind, a considerable burden of proof to be placed upon
those who wish to alter those standards. It must be obvious that this
burden of proof is not satisfied by a bland assertion, at a somewhat
late date, that the majority has applied certain criteria. Saying does
16 See Howell Chevrolet Co v. N L R. B ., 346 U. S . 482, enfg 204 F. 2d 79 ; N. L. R B-
v Ken Rose Motors , Inc., 193 F . 2d 769 ( C. A. 1) ; Ewchleay Corporation v. 2V L R B.,
206 F 2d 799 (C. A 3) ; N. L R. B v. Seven-Up Bottling Company of Miami, 196 F 2d
424 (C A 5) , N L. R B v Vulcan Foiging, 188 F. 2d 927 (C A. 6) ; Local Union No
12, Proyr essive Mine Workers of America, District No 1 v N L R . B., 189 F 2d 1 (C, A-
7) , N L R B v El Dorado Water Company, Inc, 195 F . 2d 950 ( C. A. 8) , N. L R B V_
Reed, 206 F 2d 184 (C A 9) ; N. L R. B v Conover Motor Co, 192 F 2d 779 (C A 10) -
BREEDING TRANSFER COMPANY 517
not mean doing. The majority states that it has applied a test of
"bringing the caseload of the Board down to manageable size" yet does
not offer a scintilla of evidence that this factor required a change in
our standards and played a part in their conclusions . In fact, since
the adoption of the 1950 standards the Board has had a manageable
caseload and , even in the past year with delays stemming from the
replacement of a majority of the members of the Board, there has been
no evidence to the contrary . Likewise the asserted existence of an
'"extraordinarily large caseload " as a factor in cutting jurisdiction is
negated by the Board 's own statistics . As of October 8 , the date on
-which the majority's draft referring to these criteria was given me, only
16 complaint cases and 18 representation cases were available for as-
signment to legal assistants needing new assignments . This is an
extremely low working back log for a staff of more than 85 legal as-
sistants . The majority's citation of "overall budgetary policies and
limitations" as a factor in cutting jurisdiction is an ambiguous state-
ment which is completely unexplicated and undocumented. If in-
tended to convey the idea that appropriations do not permit handling
as many cases as under the 1950 plan , it is in marked contrast to the
actual facts which show no pressing budget difficulties and in fact a
voluntary reduction in the staff of the agency in the past year during
which it has been operating , with few exceptions , under the 1950
standards . The final criterion advanced by the majority is that of "the
relative importance to the National economy of essentially local enter-
prises as against those having a truly substantial impact on our
economy." Yet this is obviously not a legitimate reason for reducing
jurisdiction beneath that set by statute but n'ierely a measure to be
utilized where a reduction is made necessary by other factors. In
sum, none of the criteria to which lip service is given are substanti-
ated by the citation of fact or figure nor could they be; and no claim
has ever been made until this late date of the existence of legitimate
budgetary or administrative necessity for a curtailment of our juris-
diction. Under these circumstances , I do not consider it sufficient
to simply acknowledge and disclaim the possibility that these new
standards may be arbitrary and to make an unsupported and self-
serving declaration that they are reasonable and proper . The Con-
gress has vested this Board with a job to do and the authority to do it.
When we do not perform that job and exercise that authority I think
a clear accounting is necessary. When that accounting is absent, as
it is when we adopt jurisdictional restrictions without vestige of fac-
tual support or documentation , and for an invalid purpose , the Board
has clearly resorted to an arbitrary abuse of its discretion.
51$ DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This patently arbitrary quality of the standards embodied in the
July 1 and 15 press releases is also recognized by Member Peterson.27
It is clear that these standards were not born of it legitimate use of
proper criteria but were motivated by a desire to cut the Board's juris-
diction for the sake of depriving the Federal Government of authority
in these areas.
The new standards, though described by the majority as effectuating
'the purposes of the Act, have precisely the opposite effect. While it
is not the Board's function to force collective bargaining on any em-
ployees, we cannot overlook the fact that the congressional policy laid
down in the 1935 Act and left unchanged in the 1947 amendments is
to "encourage the practice and procedure of collective bargaining" as
a means of eliminating industrial disputes which burden commerce.
Yet the specialized knowledge of this Agency leads inexorably to the
finding that a large share of the specific enterprises now cut loose from
the Board's jurisdiction constitute an area of potential and real labor
unrest which should demand the Board's close attention. The hun-
dreds of thousands of employers and millions of employees at work
in those enterprises now cut out from the Act form, as a whole, the
very area in which organization of employees is least advanced and
most vigorously pressed at the present time. Retail stores, particil-
larly of the chain variety, small plants and operations, plants set up for
national defense work under subcontracts, small trucking concerns,
franchised dealers in automobiles and farm machinery-these are the
areas which at present have the lowest incidence of collective bargain-
ing and employee self-organization and these are the areas, as the
Board well knows, in which organizational activity by unions is most
intense. It is very definitely the Board's concern that this area of in-
tensifying union and antiunion activity of both the legal and illegal
types is also precisely the area of greatest industrial unrest with the,
resulting serious threat to the free flow of commerce which Congress
sought to protect. While it is true that many of these employers are
small, it has earlier been noted that Congress specifically refused to ex-
empt small employers from the Act, and we have been repeatedly
adjured by the courts that : 28
Appropriate for judgment is the fact that the immediate situation
is representative of many others throughout the country, the total
27 Member Peterson lists certain criteria as appropriate factors for consideration in the
exercise of the Board 's administrative discretion in framing its jurisdictional policy, the
application of which he asserts are the basis for his own modification of the 1950 plan
with some more stringent standards Even assuming that each and every one of the fac-
tors he mentions should be included in a list of appropriate criteria, I note that he too
falls to establish the necessity for any curtailment of our present jurisdiction ; or to expli-
cate in what way the 1950 standards fall short of achieving the purpose for which they
were designed ; and how the application of any one or more of such criteria require his
change in a particular standard . As for his metaphorical voyage between Scylla and
Charybdis ; while I wish him bon voyage , I seriously doubt that his craft is seaworthy
28 Polish National Alliance v. N L. R. B., 322 U S . 643, 648.
BREEDING TRANSFER COMPANY 519)
incidence of which if left unchecked may well become far reaching
in its harm to commerce.
I must therefore ask, with all candor, precisely how the majority pro-
poses to "effectuate the policies of the Act" by denying these employers
and employees the very protection the statute was enacted to provide.
It is clear and my colleagues admit, that these hundreds of thousands
of employers and employees now deprived of the protection of the Act
are unquestionably included within the jurisdictional ambit of the Act.
Many, if not most, are directly engaged in interstate commerce; the
remainder are, without question, in enterprises which are closely linked
and intertwined with such commerce. During the 19 years of this
Agency's existence, these employers, time and time again, have been
found to be enterprises where industrial disputes would have a sub-
stantial effect upon commerce. The Board, the courts, and even the
Congress in some instances, have made factual findings of that sub-
stantial effect upon commerce. I shall set forth those findings with
respect to the individual categories of the newly announced jurisdic-
tional plan, in the companion decisions which will follow. Suffice it
here to ask : How do we effectuate the purposes of the Act by refusing
to administer it where it clearly applies and we have the facilities to
apply it? How does this Board implement the intent of Congress
when, for example, it creates a special classification which removes half
of the public utility companies under its jurisdiction when Congress
itself, in passing the Act, specifically refused to exclude any public
utilities? For as the Supreme Court has stated : 29
No distinction between public utilities and national manufac-
turing organizations has been drawn in the administration of
the Federal Act, and, when separate treatment for public utili-
ties was urged upon Congress in 1947, the suggested differentia-
tion was expressly rejected. Creation of a special classification
for public utilities is for Congress and not this Court. [Em-
phasis supplied.]
How does the Board now advance the Act's announced aim of pro-
tecting commerce when it adopts a new standard which removes most
of the retail automobile dealers in the Nation, among others, from its
jurisdiction despite the finding of the Board and the courts in the.
past that : 30
To deny jurisdiction of the Board would allow thousands of re-
tailers of new automobiles to engage in unfair labor practices
with impunity. The "total incidence" of such unfair labor prac-
20 Amalgamated Association of Street , Electric Railway h Motor Coach Employees or
America, Dtivtision 998, et at v Wisconsin Employment Relations Board, supra
30 N L. R B. v. Conover Motor Co., 192 F 2d 779 (C A 10) as quoted with approval
in N. L. R. B. v. Ken Rose Motors, Inc , 193 F. 2d 769 (C. A. 1).
520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tices if left unchecked would not only substantially interfere with
the free flow of commerce but would conceivably bring to a com-
plete standstill the interstate transactions of one of the Nation's
greatest industries. [Emphasis supplied.]
Is the free flow of commerce more secure or less secure from interrup-
tion by industrial disputes when the more than 520,000 workers and
the more than $16,000,000,000 of yearly business in that segment of
the retail field are now stripped of the protections and restraints of
the Act?
My colleagues do point to the instant case as an. illustration of such
effectuation of the purposes of the Act by a refusal to assert juris-
diction. This Employer, as part of its general hauling business in
Hannibal, Missouri, performs delivery services pursuant to exclusive
contracts with 2 interstate railroads and 1 interstate trucking com-
pany. The amount and value of the interstate freight transported
under these contracts is not shown by the record but obviously must
exceed by many times the cartage fees in the amount of $8,400 re-
ceived by the Employer in the past year for hauling such freight.
On the basis of these facts my colleagues admit that the Employer's
operations are clearly within our legal jurisdiction. Nevertheless,
because they also view such activity, when not resulting in cartage
fees of $100,000 or more annually, as without "pronounced impact"
on commerce and "truly local," the majority rejects jurisdiction.
This conclusion, as is similarly the case with the $50,000 figure
adopted by Member Peterson, is in conflict with a long line of con-
trary findings by the Board and the courts including it prior Board
decision involving this same Employer.31 It is, accordingly, deserv-
ing of some careful analysis.
As Member Peterson has observed in his separate opinion, these
terms such as "pronounced impact" and "truly local," without more,
are insubstantial as findings of fact. Nor does it suffice to comment
incorrectly that the business of this Employer is analogous to that of
an itinerant taxicab. I agree with Member Peterson that the ad-
ministration of the Act requires a more searching examination on
the question of what "affects commerce" within the meaning of the
statute. Unless we are to ignore the facts as set forth in this record,
this Employer is bound by contract as an integral part of a system
of interstate transportation of freight. Despite this clearly vital po-
sition in the flow of interstate commerce, my colleagues seem to con-
clude that the amount of the Employer's receipts and the fact that
the freight is hauled in one city at the beginning or last stage of the
31 See Bi eedvnq Transfer Company, 95 NLRB 1157 ; Horace F Wood Auto Livery Com-
pany, 93 NLRB 997 ; Bess F Young, d/b/a Young 's Motor Freight Lines, 91 NLRB 1430;
see also N L R B. v Gluck Brewing Co , 144 F 2d 847 at 854 ( C A. 8) ; Garner v. Team-
sters , Chauffeurs and Helpers Local Union No. 776, 346 U S 485
BREEDING TRANSFER COMPANY 521
interstate journey negates the need for assertion of the Board's juris-
diction. However, as I have emphasized herein, both the courts and
the Congresses which enacted the legislation we administer, have
clearly indicated that it is not the size or location of an enterprise
which is the proper gauge of that enterprise's effect upon commerce.
The instant case illustrates this unmistakably. The Employer per-
forms its delivery services under exclusive contract with 2 interstate
railways and 1 interstate trucking company. If the latter interstate
carrier itself undertook to make deliveries in Hannibal, Missouri,
and a labor dispute occurred which prevented final delivery of the
goods shipped to that city in interstate commerce, even my colleagues
would unquestionably assert jurisdiction for the impact upon com-
merce is both considerable and plain. This would be true whether
or not the cost of such delivery service in Hannibal reached $100,000
yearly and despite the fact that the labor dispute, itself, might be con-
ined to the Hannibal area. There is no reason whatsoever why a
different result should obtain merely because the delivery services are
performed by a Hannibal firm under exclusive contract with the
interstate carriers. Indeed, as the Courts have pointed out, in a
similar situation : 32
If an employer can use a separate, independent, purely intra-
state business as a means of effectuating an unfair labor practice
and that business is always beyond reach of the Board, the ad-
ministration of the Act and the application of remedies by the
Board would be effectually and improperly restricted. [Empha-
sis in part supplied.]
It is plain, therefore, that mere reference to the volume and locale
of an enterprise, particularly of the type here involved, does not
touch the basic question on which the Board's jurisdiction must rest.
In the instant case, it is clear that a strike by the Employer's em-
ployees would have the same immediate effect upon interstate com-
merce as a strike anywhere among the employees of the interstate car-
riers themselves. The interstate movement of goods would be affected
regardless of whether the interference occurred at the beginning, the
middle, or the end of their journey. As the Supreme Court has aptly
commented : 33
Restraints, to be effective, do not have to be applied all along the
line of movement of interstate commerce. The source of the re-
straint may be intrastate, as the making of a contract or combina-
tion usually is; the application of the restraint may be intra-
32N L R. B. v. Gtuek Brewing Co, supra at 854-855. See also N. L R B. v Thomas
Rigging Co., 211 F. 2d 153 (C. A. 9) where the court noted that the Boaid's jurisdiction
under the Act cannot be frustrated by the "simple expedient of subcontracting."
11 United States v Women's Sportswear Manufacturers Association, 336 U. S. 460 at 464.
.522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
state, as it often is; but neither matters if the necessary effect is
to stifle or restrain commerce among the states. If it is inter-
state commerce that feels the pinch, it does not matter how local
the operation which applies the squeeze. [Emphasis supplied.]
Dismissal of the instant case, accordingly, as well as the $100,000
standard which it explicates, in no way effectuates the purpose of the
Act insofar as the protection of interstate commerce from the impact
of industrial disputes. A jurisdictional standard, such as this, which
has no basis in fact, no documentation in experience, and no justifica-
tion in practice, can only be termed arbitrary. Any "yardstick"
which is premised, as this and the remainder of the new standards
are, upon the philosophy of transferring Federal authority in labor
relations to the States rather than upon a determination to exert that
authority where commerce is affected is plainly not a correct one. We
have been cautioned by the Seventh Circuit Court of Appeals in a
previous case,34 that the Board does not possess "the unbridled discre-
tion to evaluate such impact by any standard which its fancy may
suggest as expedient in a particular case."
There is an additional factor of tremendous importance which must
be taken into 'consideration in any determination to decrease the
Board's jurisdiction. In the past few years, it has become evident
from judicial decisions that a serious legal question exists as to the au-
thority of any State or local governnment to act with respect to con-
duct falling within the legal jurisdiction of the Board. The Board
can scarcely plead ignorance of this question however it is ignored in
the majority decision for it has been explored by representatives of
this agency before Congress and has been the subject of innumerable
articles and critical comment.
In a number of instances the Supreme Court has ruled that State
boards and courts could not act when the conduct complained of was,
in fact, a violation of the Federal statute.35 In the Amalgamated As-
sociation case,36 the Supreme Court held that the Wisconsin Public
Utility Anti-Strike Act was unconstitutional as it was in conflict
with the Labor Management Relations Act, 1947. It was in this last
instance that the Court stated :
We have recently examined the extent to which Congress has
regulated peaceful strikes for higher wages in industries affect-
ing commerce. . . . We noted that Congress, in § 7 of the Na-
tional Labor Relations Act of 1935, as amended by the Labor
Management Relations Act of 1947, expressly safeguarded for
34 Joliet Contractors Association , et al v N. L R B, 193 F 2d 833.
Automobile Workers v O'Brien, 339 U. S. 454; Buildvng Trades v. Kinard Construe
tcon Co , 346 U. S. 933
36 Amalgamated Association of Street, Electric Railway & Motor Coach Employees of
America, Division 998 v Wtisconsan Employment Relations Board, supra, at 389-390.
BREEDING TRANSFER COMPANY 523
employees in such industries the "right ... to engage in . . .
concerted activities for the purpose of collective bargaining or
other mutual aid or protection ," "e. g., to strike ." We also listed
the qualifications and regulations which Congress itself has im-
posed upon its guarantee of the right to strike , . . . Upon re-
view of these federal legislative provisions , we held, 339 U. S.
at 457: "None of these sections can be read as permitting concur-
rent state regulation of peaceful strikes for higher wages. Con-
gress occupied this field and closed it to state regulation . Plank-
inton Packing Co. v. Wisconsin Board, 338 U. S. 953 (1950) ;
LaCrosse Telephone Corp v. Tisconsin Board, 336 U. S. 18
(1949) ; Bethlehem Steel Co. v. New York Labor Board, 330 U. S.
767 (1947) ; Hill v. Florida, 325 U. S. 538 (1945). [Emphasis
supplied.]
Of particular interest and importance on this question is the case of
Garner v. Teamsters, Chauffeurs and Helpers Local Union No. 776.37
This decision of the Supreme Court concerned a trucking company
almost identical to the Hannibal , Missouri , firm over which j urisdic
tion is now being rejected by my colleagues in the instant case. The
Garner firm was picketed by the Teamsters Union and requested an
injunction from a State court. No attempt was made to resolve the
issues by a complaint to the National Labor Relations Board. The
'Supreme Court, on appeal, however, found that the Garner trucking
enterprise was clearly subject to the jurisdiction of the Federal Board
and that the conduct complained of was within the power of the Board
to control and prevent . The Court therefore found that the courts
and administrative agencies of the State of Pennsylvania were with-
out authority to adjudicate the controversy, holding that:
Congress did not merely lay clown a substantive rule of law to be
enforced by any tribunal competent to apply law generally to
the parties. It went on to confide primary interpretation and ap-
plication of its rules to a specific and specially constituted tri-
bunal and prescribed a particular procedure for investigation,
complaint and notice, and hearing and decision , including judi-
cial relief pending a final administrative order. Congress evi-
dently considered that centralized administration of specially de-
signed procedures was necessary to obtain uniform application of
its substantive rules and to avoid these diversities and conflicts
likely to result from a variety of local procedures and attitudes
towards labor controversies. [Emphasis supplied.]
As numerous commentators have pointed out, and as the Board is
well aware , the Garner decision spotlights a "no-man 's" land of labor
disputes for where conduct affecting commerce and falling among the
37 346 U. S 485
524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
restraints or rights governed by the Federal Act is concerned, that con-
duct is within the exclusive province of this Board, whether or not
the Board takes action. It is true that the Supreme Court, in the
Garner case, did not deal with the specific question of what authority
the States would have where the Federal Board has jurisdiction but
refused to exercise it. I shall not attempt to anticipate the answer
to that question. Neither do I think it wise, in the absence of such an
authoritative answer, and mindful of the legal inability of this Board"
to cede such jurisdiction, to drastically increase the number, size, and
importance of the enterprises whose status is thus cast in doubt, as the
majority do by their new standards. It was possibly with this in
mind, that the Court, in Garner, noted that "Congress, in enacting such
legislation as we have here, can save alternative or supplemental state
remedies by express terms, or by some clear implication, if it sees fit."
[Emphasis supplied.] It is now but a few short months since Con-
gress rejected such concurrent State control.38
Moreover, even if we were to assume that the States have the legal
authority to act where the Board has declined jurisdiction, the situa-
tion is still, at best, extremely unsatisfactory. Only a relatively small
number of States have established administrative machinery to handle
industrial disputes, their root causes, and their results. These States,
however, in no case have statutes consistent enough with the Federal
Act to qualify for receiving jurisdiction by cession from the National
Labor Relations Board. And, by giving up jurisdiction in the areas
eliminated by the new standards, the Board creates a chaotic vacuum
in the great number of remaining States which have no administrative
facilities to protect the rights and regulate the evils governed by the
Federal Act. Does this not leave, in these States, only the State in-
junctive processes-the doors to which Congress thought it was closing
by this and other legislation?
In summation, the jurisdictional standards now made effective by a
majority of this Board are limitations conceived and adopted as a
method of divesting the Board and investing the States with control
over labor relations in a large segment of our national economy. That
program is clearly not a matter within the authority of this agency to
either adopt or reject but is a legislative question to be decided by the
Congress. The invasion of the powers of the legislature which the
adoption of this program constituted, is made particularly evident and
untenable by the recent and consistent rejection by the Congress of the
same proposals. The standards by which the Board will hereafter
accept or reject jurisdiction are patently arbitrary formulae without
basis of foundation in fact or reasonable relation to the duty of this
' S 1264 , a bill introduced by Senator Ives, which would have specifically provided for
State authority to proceed where the Board declined to exercise jurisdiction , has failed of
passage in the current session of the Congiess along with other proposals of the same
nature
BREEDING TRANSFER COMPANY 525
Agency to protect commerce from labor disputes affecting it. These
standards are in direct conflict with the long history of judicial and
Board determinations in the same field. They cannot be justified in
law and, as policy, give little or no weight to the years of experience
.and intimate knowledge of this agency in its specialized field.
I must add one final caveat lest the instant decision and the new
-standards which it illustrates give thought of victory to either the
opponents or proponents of collective bargaining. The slash in the
Board's jurisdiction now consummated is not a curtailment of em-
ployee rights alone or employer rights alone. Both the Wagner Act,
as amended, and the Taft-Hartley Act have been curtailed by this
action. If comfort is to be taken by anyone, it belongs to those elimi-
nated from the Act who wish to violate the restrictions and rights con-
tained in those statutes and who may now do so with impunity. It is
the employee who wishes, freely, to engage or not engage in collective
bargaining and the employer faced with boycott, forced bargaining,
,or worse, who will accept and suffer the inevitable consequences of this
action. To the extent that they do so, the economic health of this Na-
tion must unquestionably be harmed, and the statutory duty of this
Board must, inevitably, be evaded.
Separate opinion of MEMBER PETERSON : 39
But for the fact that I deem it an obligation of office to do so, I
would not undertake to set down my views now on the broad issue of
the Board's jurisdiction; to some it may seem an academic venture into
futility, especially in an anticlimatic atmosphere where there is scant
hope of converting those of my colleagues who have already announced
their conclusions 40 However, I believe that Members of this Board
owe it to the public and all interested parties to explicate their positions
on significant issues coming before us. The more so, because of the
uncertain state of the law relating to the propriety of action by the
States in an area from which this Board has voluntarily chosen to re-
treat. Therefore, I offer my own estimate of the extent to which
and why a quasi-judicial agency such as the Board can or should, at this
juncture, eschew any substantial part of the statutory authority, judi-
cially sanctioned, to exercise the full reach of the commerce clause
power.
89 When this opinion was written, the only extant explanation of the majority's exten-
sive revision of the 1950 jurisdictional plan was contained in the July 1 and 15 press re-
leases and a short draft majority opinion Member Murdock had more fully expressed his
'ien•s Peifoice I addressed myself to those documents and the reasoning which they
contained. My colleagues have revised their opinions to read as they now do It seems
unnecessary for me to revise what follows. Sometime there must be an end to the rather
pointless and to me distasteful business of revising draft opinions to score a supposed
point on a colleague Therefore, except for this footnote, my opinion remains as it was
ouginally
40 See press releases, July 1 and 15, 1954, announcing the Board's new jurisdictional
standards.
526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I take it, as the late Justice Cardozo observed, that each of us "has
in truth an underlying philosophy of life, even those of us to whom the
names and the notions of philosophy are unknown or anathema." 41 To,
me, a basic premise is that this Board, no less than as has been said
of the Supreme Court, should bow "to the lessons of experience and the-
force of better reasoning, recognizing that the process of trial and
error, so fruitful in the physical sciences, is appropriate also in the
judicial process." 42
At the outset, I agree that the Board is not legally precluded from
adopting new jurisdictional standards. Although the legislative his-
tories of the Wagner 43 and Taft-Hartley 4° Acts as well as court de-
cisions 45 disclose that Congress intended to delegate to the Board its
full power under the commerce clause of the Constitution, I doubt that
it can be denied that the Board is free, within limits, to utilize its
discretion in determining the boundaries in which that power should
be exercised. I do not read the cases upholding the Board's asser-
tion of jurisdiction as requiring us to assert jurisdiction wherever we
legally can. In their context, they only spell out what we may do,
not what we must. Since at least 1943, the Board has consistently held
that it has the discretion to decline to exercise jurisdiction over enter-
prises which are essentially local in character, although they may af-
fect commerce within the meaning of the Act, on the ground that as-
sertion would not effectuate the policies of the Act.46 Indeed, the
Supreme Court 4l and various circuit courts 48 have approved this exer-
cise by the Board of its discretion.
The Board's 1950 jurisdictional standards, as I understand them,
were never intended to be immune to change or compromise, as all of us
agree. The plan represented the best but tentative opinions of our
predecessors, gleaned from their experience in office, as to how to cope
with the difficult question of the Board's jurisdictional role, and noth-
ing more. They did not promulgate it as coming from on Sinai, to
have the same enduring effect as the Law of Moses. Rather, they
recognized that the plan would, and intended that it should, be subject
to revision if required by changing times and circumstances. More-
over, in my opinion, we would be derelict in our duties as their suc-
41 Cardoso, Nature of the Judicial Piocess, p 12
42 Brandeis , J, dissenting in Barnett v Coronado Oil d Gas Go, 285 U S 393 at 407-8.
93 Senate Report No 573 on S 1958, pp. 17-19 , Legislat44 e History of the National
Labor Relations Act, 1935 , pp 2315-2319.
44 H Rep No 245 on H R 3020 , p 18, Legislative History of the Labor Management
Relations Act, 1947, p 309, S . Rep No 105 in S. 1126, pp 18, 19
45 See for example, N L R B. v. FavnMlatt, 306 U . S 601, 607.
46 Lacey Melling Company, 48 NLRB 914
471N L R B v Denver Bldg Trades Council, 341 S 675, 684.
48 Local Union No 12 , Progressive Mine lVoi leers of America, District No 1 v N L R B ,
189 F 2d 1 ( C A 7), cert denied , 342 U. S . 868, Wayside Press, Inc v N L . R B , 206
F. 2d 862 ( C. A. 9) , Haleston Drug Stores , Inc v. N L. R B , 187 F. 2d 418 ( C A. 9),
cert. denied , 342 U S 815.
BREEDING TRANSFER COMPANY 527
cessors in office if we were to accept the plan as gospel, without assay-
ing or appraising its efficacy in the crucible of our own knowledge and
the experience in its application to a fluid industrial scene.
However, I do not mean to imply that the 1950 standards did not
represent a needed and salutary change in the Board's approach to
the whole problem of jurisdiction or that they were not based upon a
sound and informed judgment. As one having taken office much after
the plan was evolved, I understand it was designed to achieve the dual
objectives of remedying the pattern of uncertainty that had developed
over the prior years because of the declination or assertion of juris-
diction by the Board on a case-to-case basis, and of limiting the Board's
exercise of jurisdiction to enterprises having a pronounced impact on
commerce.49 I think all my present colleagues would agree that the
first objective of the plan was successfully accomplished. In my
opinion, the same can be said with respect to the second objective, if
due recognition is given to its nature. Thus, I believe that the framers.
of the plan realized that the concept of what constitutes essentially
local enterprise could not be fixed and rigid because of its relationship,
to the Nation's changing economic conditions. Putting it another
way, that which may have been considered as having a substantial
effect on commerce in 1950 may not necessarily be so viewed in 1954
because of influencing factors upon our national economy such as
changes in the price level and the state of collective bargaining.
In summary, I believe that the Board has the legal authority to
establish a jurisdictional plan such as has been enunciated by the
majority. However, this should not be interpreted as an indication
that I agree with the basis upon which the new plan was formulated
or with all of its features. Fora detailed analysis of why I am unable
to accept the new jurisdictional plan as announced, I shall turn now
to a discussion of the majority opinion in this case.
My principal objection to the new plan stems from what strikes.
me as its arbitrary and categorical character. To say, as I have, that
the Board has discretion to decide how or in what circumstances th&
policies of the Act will be effectuated by asserting or declining juris-
diction, is not to say that such discretion can be exercised in an un-
restrained or capricious manner.50 Yet, this appears to me to be the
net effect, although doubtless not intended, of the action taken by
the majority in promulgating the new standards. I do not find any
real effort to explain what criteria have been utilized in arriving at
the new standards or why the changes which have been made are
advisable-if indeed they are. Mere use of such trite phrases as
"pronounced impact" and "business is truly local"-without more,
19 Hollow Tee Lumber Company, 91 NLRB 635
10 Joliet Cont?aotors Associ ation, et at , v Al L. R. B., 193 F 2d (C A 7).
528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
does not suffice. A complex issue is involved here which is not appro-
priate for dogmatic disposition. In my opinion, it is an obligation
of this Board in dealing with a matter as fundamental and vital as
this to state explicitly how it reached its conclusion to curtail drasti-
cally the Board's area of jurisdiction, and why; employers, labor
organizations, and several million employees are entitled to know
why they are being deprived of rights apparently vouchsafed them
in the Act.
The old plan was evolved after a careful and studious consideration
of certain definite factors-which I shall discuss later-but one can
only speculate as to the source of the new one. In this posture, it
is not only plausible but natural to infer, as Member Murdock sug-
gests, that the new standards had their genesis in a decision to confine
the Board to a much narrower jurisdiction so that a considerable
amount of Federal authority to regulate labor relations would be
administratively reallocated to the State governments.51 If this is
the origin and purpose of the new plan, it smacks of administrative
iegislation, because it deals with a matter for Congress to determine
and not the Board.52 Moreover, assuming arguendo that the Board
has such authority, the efficacy of its use as manifested in the new
plan is open to serious question, as Member Murdock points out, for
the legal authority of State boards and courts to act in areas where
the Board has declined jurisdiction is, to say the least, uncertain.53
What is more, there is but a mere handful of States which have estab-
lished administrative machinery to handle industrial disputes.54 Far
from accomplishing the purpose of returning to the several sovereign
States the regulation of that which is essentially or primarily local
in character, my majority colleagues are relegating to a State of
chaos sizeable parts of many branches of industry that are plainly
within the ambit of the Act.
Another difficulty I have with the action here taken concerns what
appears to me to be a blurred view of, or disregard for, our proper
role as members of a continuing quasi-judicial body. I conceive our
51 The proviso to Section 10 (a) of the Act clearly restricts the Board's authority to
cede its jurisdiction to the States Indeed, it was because Senator Ives recognized that
this limitation upon the Board's authority was a matter for Congress to correct that he
proposed a bill (S 1264, March 11, 1953) to repeal this proviso and to substitute language
which would liberalize the Board's power to cede jurisdiction to the States.
52 Colgate-Palmolive-Peet Co v. N. L R B , 338 U S 355, 363: "It is not necessary
for us to justify the policy of Congiess It is enough that we find it in the statute. . . .
To sustain the Board's contention would be to permit the Board under the guise of ad-
ministration to put limitations in the statute not placed there by Congress "
53 Garner, et al. v Teamsters, Chauffeurs, and Helpe; s Union Local No. 776, (AFL) et al ,
346 U S. 485
"The following 12 States have Labor Relations Acts: Colorado, Connecticut, Kansas,
Massachusetts, Michigan, Minnesota, New York, Oregon, Pennsylvania, Rhode Island,
Utah, Wisconsin.
BREEDING TRANSFER COMPANY 529
positions to be analogous to those of judges. As I have stated, I do
not believe that we are fettered and shackled by what our predecessors
have done; but I also think we should not lightly overturn Board
precedents and practice or blithely ignore the lessons to be discerned
in the experiences of both management and labor in living under these
precedents. In the 19 years of administration of the Act, this Board
has built a tremendous body of administrative common law in the field
of labor relations. Those regulated by the Act, as interpreted and
applied, have to an appreciable extent sought to accommodate their af-
fairs to the Board's decisions, and thus have a substantial stake in being
able to rely on established principles absent revisions in the basic
statute. These considerations, plus the "lessons of experience" derived
from living with these principles, I submit, should not be brushed
aside by new administrative judges, who may wish-as indeed most
of us would-to paint on a clean canvas. In short, arbitrary and
drastic changes in the rules of the game-regardless of how tempting
their promulgation may be to the rule makers-do not contribute to
orderly relations.
Although the effort to steer a middle course between the majority
and dissenting opinions in this case is fraught with some of the dan-
gers that assailed the mariner in cruising between Scylla and Charyb-
dis, I am not without some charts. Happily, the Board has already
dealt with the problem. The criteria which heretofore were applied
in reaching a determination are as efficacious, pertinent, and available
today. The factors which were considered in 1950 may be summa-
rized as follows : (1) The physical volume of cases Board Members and
their staffs can reasonably handle; (2) the desirability of limiting the
Board's jurisdictional coverage so as to enable the Board to accom-
modate the volume of incoming cases to manageable proportions, and
to permit adequate attention to be given a more select group of im-
portant cases; (3) the Agency's available funds; (4) the relative im-
portance to the national economy of enterprises having intrinsically
local characteristics as against those having a substantial impact
upon commerce; and, (5) the need for expeditious resolution of labor
disputes and for a decrease in the time lag between the hearing and
final decision in Board cases.
These criteria, while necessarily not as precise as some might wish,
seem as valid in 1954 as in 1950. In addition, I have taken into ac-
count the experiences with the 1950 formulation as well as the fact
that an upward swing in the Nation's economic level has occurred
since the minimum dollar volume figures were set and, that there are
many more enterprises today which come within the dollar volume
test of the 1950 plan than there were at that time. All of these con-
338207-55-vol. 110-35
530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
siderations suggest the advisability of increasing the minimum dollar
volume figures to reflect present circumstances and conditions 55
Having reexamined and evaluated the 1950 jurisdictional standards
in light of all the criteria at my disposal and having given the matter
the most careful consideration of which I am capable, I now propose
to specify how I would change the plan, indicating here only wherein
my views differ from those of my majority colleagues and reserving
my more detailed reasons for disagreeing until specific cases are pre-
sented to the Board involving particular aspects of the new plan. The
most convenient vehicle for presenting my views is the 1950 plan
itself.
According to that plan, the Board indicated that it would assert
jurisdiction over :
1. Instrumentalities and channels of interstate and foreign com-
merce.
a. Included under this category were, among others, motor carriers,
shipping and pipelines, telephone, telegraph, radio, and television
systems, banks, and newspapers. In general, no minimum total dol-
lar volume of business was required and jurisdiction was taken so
long as the impact on commerce of the operations involved was not
de minimis.
The majority would assert jurisdiction over radio and television sta-
tions only if their gross annual revenue amounts to at least $200,000,
and over newspapers only if their gross annual income amounts to at
least $500,000. I would adhere to the 1950 plan requiring only that
with respect to radio and television stations and telephone and tele-
graph systems the operations not be de minimis and that with regard
to newspapers the particular employer be a member of an interstate
wire service or publish syndicated features and advertise nationally
sold products.
The majority would exercise jurisdiction over intrastate trucking
companies and similar firms which are links in interstate commerce
only if they do at least $100,000 worth of business annually for other
concerns in categories numbered 1, 2, or 4 of the new plan. I am dis-
posed to agree with the majority that a monetary figure should be fixed
s5 Member Murdock states I fail to establish the necessity for any changes in the 1950
plan to explicate wherein the old standards fall short of achieving their goal or how
any of the criteria I utilize require the changes I propose. In my view, and to my sat-
isfaction, I have done so, although regrettably not to his, in this and in other cases issued
or in preparation My willingness to apply revised standards of dollar volume minima,
and to consider alteration of the 1950 plan in other respects, has been dictated by my
concept of a proper exercise of the Boaid's discretion If my interpretation does not
coincide with a view which others may hold, that administrative standards once laid
down are immutable, that is a result which I cannot avoid. For my part, although I
might prefer that cutoff points be reached and changes proposed by the application of
standards that are themselves less imprecise than those which I have applied, I believe
that the law in this field, "like humankind, if life is to continue, must find some path of
compromise " (Cai doze, The Growth of the Law, p. 2.)
BREEDING TRANSFER COMPANY 531
for local trucking concerns because I do not believe that they should
be properly considered essential links in interstate commerce without
regard to the amount of business they do. However, I would set the
figure at $50,000 rather than $100,000. As the Employer in this case
does much less than $50,000 worth of business, I agree with the majority
that the petition should be dismissed.
2. Public utility and transit systems.
a. Included in this category were gas, electric, and water companies
and public transit systems. In general, no minimum total dollar vol-
ume of business was required and jurisdiction was taken as long as the
impact on commerce of the operations involved were not de m,inimis.
The majority would assert jurisdiction over "local" power, gas, and
water utilities and intrastate public transit systems only if the com-
pany does a gross annual business of $3,000,000, and would exercise
jurisdiction over public transit systems engaged in interstate commerce
only if the gross annual revenue from interstate operations amounts to
at least $100,000. I would adhere to the 1950 plan on the ground that
public utilities including public transit lines have such an important
impact on commerce as to warrant taking jurisdiction over all cases
involving such enterprises, where they are engaged in commerce, or
operations affecting commerce, subject only to the rule of de minimis.16
3. Establishments which, although local in character, operate as in-
tegral parts of a multistate enterprise.
a. Included in this category were retail chain stores, and branch
divisions of national or interstate organizations. In general, no mini-
mum total dollar volume of business was required and jurisdiction was
taken so long as the establishment was part of a multistate enterprise.
The majority would assert jurisdiction over such establishments
other than a retail or service establishment if : (a) The plant involved
has a direct outflow of goods into interstate commerce amounting to
$50,000 a year or furnishes goods to the value of $100,000 a year to
interstate concerns coming within categories 1, 2, or 4 of the new
plan, or (b) if the plant does not meet the separate plant tests listed
in (a) above, if the multistate enterprise, of which the plant is a part,
has a total outflow of $250,000 a year into interstate commerce. Also,
jurisdiction would not be exercised over an establishment solely be-
cause it was operating under a franchise from a national enterprise
and would be exercised over franchised establishments only if they
satisfied some other standard in the new plan. I would adhere to the
56I realize that the view expressed here is contrary to the position I took recently in
three rural electric cooperative cases and another involving a public bus system. See
Inter- County Rural Electric Cooperative Cop, 106 NLRB 1305; Coles -Uoultise Electric
Cooperative , 107 NLRB 30 , Upshur Rural Electric Cooperative Corporation, 107 NLRB
207; Auburn Bus Company , 107 NLRB 919 These cases were decided at a time when
the Board was dealing with the question of jurisdiction and ievision of the 1950 plan on
an ad hoc basis . Upon further reflection , I have concluded to reverse my position in each
of the four
532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1950 plan with respect to establishments such as are involved here.
However, I agree with the majority that with respect to franchised
establishments the possession by the particular enterprise of a fran-
chise should not be the solely determinative test.
4. Enterprises engaged in producing or handling goods destined for
out-of-State shipment, or performing services outside the State, if
the goods or services are valued at $25,000 per annum.
a. Included in this category, among others, were interstate building
and engineering firms, and firms that sell their product within the
State to a company for shipment by the latter to another State, or
for incorporation in a product the latter ships outside the State.
The majority would assert jurisdiction over such enterprises, other
than retail stores, producing or handling goods destined for out-of-
State shipment or performing services outside the State in which the
firm is located, where such goods or services are valued at $50,000 a
year. I would agree to this change in the minimum total dollar
volume figure made by the majority for the reasons discussed earlier
in this opinion.
5. Intrastate enterprises furnishing services or materials necessary
to the operation of enterprises falling into categories 1, 2, or 4, pro-
vided such goods or services are valued at $50,000 per annum.
a. Included in this category were, among others, contract shops or
other employers who process allied or supplementary operations for
manufacturers engaged in interstate commerce, and suppliers of raw
materials, finished parts used in the final product, machinery, ma-
chinery parts, tools, dies, patterns, and designs.
The majority would assert jurisdiction over: (1) Enterprises sup-
plying goods or furnishing services amounting to $100,000 a year or
more to concerns in categories 1, 2, or 4 of the new plan, except that
jurisdiction would not be exercised over enterprises supplying ma-
terials to other firms which do interstate business unless the materials
themselves ultimately go outside the State or over enterprises furnish-
ing services unless the services are part of the stream of commerce;
(2) enterprises furnishing services, other than those in category 5 of
the new plan, amounting to $200,000 a year or more to concerns in
categories 1, 2, or 4 of the new plan, or if the establishment involved
is part of a multistate chain jurisdiction would be exercised if the
chain furnishes services amounting to $1,000,000 or more per year to
concerns in categories 1, 2, or 4 of the new plan except that juris-
diction would not be exercised over general or public office buildings
merely because such buildings have tenants over which the Board takes
jurisdiction. Regarding (1), I agree with the majority that the mini-
mum total dollar volume of business figures should be raised from
$50,000 to $100,000. However, I would adhere to the old plan in
not requiring that materials supplied to other firms in interstate com-
BREEDING TRANSFER COMPANY 533
merce ultimately go outside the State and not requiring that services
be part of the stream of commerce.57 Regarding (2), I can see no
essential difference between furnishing services which become part
of the stream of commerce and those which do not, since both types
of services are used in the operations of the interstate enterprises
which purchase them. Therefore, I would use the $100,000 figure
in (1), above, rather than the $200,000 figure in (2). Furthermore,
I would adhere to the 1950 plan with respect to office buildings.
6. Any other enterprise which has (a) direct inflow of $500,000
per annum or (b) indirect inflow of $1,000,000 per annum or (c)
combined percentages of any outflow and inflow requirements de-
scribed in categories 4, 5, 6 (a) and (b), totalling in combination to
100 percent.
The majority would assert jurisdiction over enterprises other than
retail establishments which have (a) direct inflow of goods or ma-
terials from out-of-State valued at $500,000 a year or more, or (b) an
indirect inflow of goods or materials valued at $1,000,000 a year or
more. The majority would abolish the "combination category" (c)
of the old plan. I would agree to the abandonment of category (c)
as part of the jurisdictional plan; while logically defensible, it has
had the effect of an irritant scarcely worth the price.
7. Establishments substantially affecting national defense.
a. Under the 1950 plan the Board took jurisdiction of any company
doing any work affecting national defense.
The majority would assert jurisdiction over enterprises affecting
the national defense, where the goods or services furnished are directly
related to national defense, and amount to at least $100,000 annually,
and are furnished pursuant to a Government contract. I agree to the
fixing of a minimum total dollar volume of business figure for estab-
lishments affecting national defense. However, I think the minimum
figure should be set at $50,000 and that jurisdiction should be asserted
over any company engaged in that amount of national defense work
regardless of whether it is pursuant to direct Government contract.
8. This is a new category introduced by the majority with respect
to retail stores. Jurisdiction would be asserted over :
a. Independent retail stores, whether a single store or part of a
chain operating entirely within a State, only if (1) the store involved
in the case has annual purchases amounting to at least $1,000,000
coming to it directly from outside the State, or (2) the store involved
has annual purchases of $2,000,000 coming to it indirectly from outside
the State, or (3) if the store ships $100,000 worth of merchandise into
another State or States.
57 In this respect, I would therefore reverse the position I took in Brooks Wood Products,
107 NLRB 237.
534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
b. Chains of retail stores, with stores in more than 1 State, only if
(1) the individual store involved meets either of the tests for intra-
state stores, or (2) the chain has gross annual sales totalling $10,000,-
000 or more. Jurisdiction would not be exercised over public restau-
rants regardless of source and volume of materials and regardless of
whether the restaurant is part of a multistate chain. With regard to
this new category, I would in general adhere to the 1950 plan as to
the retail stores and public restaurants.
WILLIAM T. WILSON AND MABEL J. WILSON, A PARTNERSHIP, D/B/A
WILSON-OLDSMOBILE and LOCAL 985, INTERNATIONAL UNION, UNITED
AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT W ORKERS OF
AMERICA, UAW-CIO, PETITIONER. Case No. 7-RC-2145. October
26, 1954
Decision and Order
Upon a petition duly filed under Section 9 (c) of the National Labor.
Relations Act, a hearing was held before Emil C. Farkas, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The labor organization involved claims to represent certain em-
ployees of the Employer.
2. No question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act, for the following
reasons:
At the hearing the Employer 1 moved to dismiss the petition on the
ground that its operations do not affect commerce within the meaning
of the Act and on the further ground that in any event it would not
effectuate the purposes of the Act for the Board to exercise its jurisdic-
tion over this operation.2 The Petitioner ,ipposed the motion, and the
hearing officer referred it to the Board for decision.
The facts relative to the Employer's business are not in dispute.
Wilson-Oldsmobile, a partnership, sells and services motor vehicles.
Its sole place of business is located in Detroit, Michigan. In 1953, its
purchases of new automobiles, parts, accessories, gas, etc., were valued
in excess of $1,300,000, all of which were purchased and received di-
i The Employer's name appears in the caption as amended at the hearing.
2 At the hearing the Employer further moved to dismiss the instant petition on the
grounds (1) that the hearing was not an open hearing to which the public had free access,
and (2) that the petition and notice of hearing improperly list the Employer' s name as
Wilson-Oldsmobile, Inc., and that the Employer is not properly before the Board. We
find it unnecessary to discuss these contentions because of our disposition of the question
of jurisdiction.
110 NLRB No. 74.