Cantera Providencia

National Labor Relations Board - Board Decisions

Mar 4, 1955

111 N.L.R.B. 848 (N.L.R.B. 1955)

848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONRADO FORESTIER D/B/A CANTERA PROVIDENCIA and BENITO CORDERO,
PETITIONER and CONFEDERACION GENERAL DE TRABAJADORES DE
PUERTO Rico, AuTENTICA . Case No. 24-RD-22. March 4, 1955
Decision and Order
Upon a decertification petition duly filed under Section 9 (c) of
the National Labor Relations Act, a hearing was held before Joseph
M. Chandri, 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 :
The Employer operates a stone quarry in Mayaguez, Puerto Rico.
During the 12-month period preceding the hearing, the Employer's
gross sales approximated $124,000, and its purchases $55,000. All
sales and purchases were made within Puerto Rico, but 72 percent of
its purchases originated outside the Territory.
There is no question that the Employer's operations fail to meet any
of the standards recently decided by the Board as necessary for the
assertion of jurisdiction. The sole issue stems from the fact that
the Employer's business is located in a Territory of the United States.
Since the promulgation of the new jurisdictional standards, the Board
has held where specially applicable rules have been established, similar
enterprises situated in the Territories are required to conform to the
same jurisdictional criteria as are applicable in the 48 States! In
those earlier cases, the Board indicated that no exception as to the
Territories was warranted : that the impact on commerce of business
operations having their situs in the Territories is no greater than that
of similar enterprises located in the 48 States. We believe that the
same principle has application here. Accordingly, in the present case
and in future cases the Board's entire jurisdictional standards will be
uniformly applied in the Territories'as in the several States.
The Employer's operations do not satisfy the inflow or outflow tests
of the applicable standard as outlined in Jonesboro Grain Drying
Cooperative, 110 NLRB 481. We find therefore that it will not effectu-
ate the policies of the Act to assert jurisdiction.
[The Board dismissed the petition.]
MEMBER MURDOCK, dissenting :
I dissent from the refusal to assert jurisdiction in the instant case.
I likewise dissent from the important announcement by the majority
that in future cases the Board will no longer assert jurisdiction in
1 The Virgin Isles Hotels, Inc., 110 NLRB 558 (hotel ) ; Sixto Ortega d/b/a Sixto, 110
NLRB 1917 (retail bakery) ; Union Cab Company, 110 NLRB 1921 ( local taxicab opera-
tion).
111 NLRB No. 141.
CANTERA PROVIDENCIA 849
any of the Territories on a plenary basis, but instead will apply all of
the Board's jurisdictional standards adopted for the U. S. as the test
for the assertion of jurisdiction in the Territories as well. The one
virtue I can find in the majority's announcement is that it removes
the presently existing confusion as to what is the Board's jurisdic-
tional policy in the Territories. This confusion has been created by
recent decisions (from which I likewise dissented) which made more
limited inroads into the plenary policy, and which left in considerable
doubt what the Board's actual policy was in any particular Territory
and, indeed, whether there was any uniform policy with respect to the
Territories. Two of these decisions were expressly confined by the
Board to the peculiar type of business involved over which the Board
does not assert jurisdiction in the U. S.-a hotel in the Virgin Islands 2
and a taxicab operation in Alaska.' On the same day the latter case
issued the Board dismissed a case involving a retail bakery in Puerto
Rico which did not meet the U. S. retail standard. The majority
therein made the general announcement that in future cases involving
businesses for which the Board had established "specially applicable
standards" for the U. S., it would apply the same standards in Puerto
Rico.4 I pointed out in my dissent in that case that no one knew and
the majority did not define which of the U. S. standards were "spe-
cially applicable," and that the limitation of the announcement to
Puerto Rico further left in doubt what the Board's policy was in
Alaska and Hawaii. But it is clear that the instant case now substi-
tutes a different policy for that announced in Sixto Ortega and re-
moves all ambiguities and confusion with the clear announcement that
all U. S. jurisdictional standards are generally applicable, not only in
Puerto Rico, but in all Territories.' If the Board cannot have a correct
jurisdictional policy with respect to the Territories there is at least
some virtue in having a certain policy.
In view of the fact that the Board for the first time in its history
has made the important decision in this case to abdicate entirely its
plenary jurisdictional policy for cases arising in all Territories, I am
constrained to write a full dissent from this action despite the fact
that some of the points have been included in dissents from the prior
cases which made more limited inroads into the plenary policy.
The sole basis given by the majority for the determination to aban-
don the Board's long-standing plenary jurisdictional policy for the
Territories and to substitute the restrictive U. S. standards is, that
2 The Virgin Isles Hotels, Inc., 110 NLRB 558.
3 Union Cab Company, 110 NLRB 1921.
* Santo Ortega , 110 NLRB 1917.
5I note that the majority also implicitly but necessarily decides the issue expressly re-
served in Sioto Ortega-whether the Act is applicable to the Commonwealth of Puerto
Rico-thereby removing the confusion which Sixto Ortega created on that point.
850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"the impact on commerce of business operations having their situs in
the Territories is no greater than that of similar enterprises located in
the 48 States." [Emphasis supplied.] Such a statement wholly.ig-
nores and flies in the face of a contrary determination made by the
Congress in Section 2 (6) of the Act. Congress therein specifically
defined "commerce" with respect to Territories differently from the
definition applicable to the 48 States. With respect to the States it
defined "commerce" in terms of movements "among" or "between"
States-across State lines. But with respect to a Territory, it defined
"commerce" to include "trade . . . within . . . any Territory" [em-
phasis supplied] as well as across Territorial lines. The courts have
pointed outs that
.. . Congress can constitutionally regulate purely intraterritorial
commerce. And we think there can be no doubt that Congress
must have intended to exercise this power when in Section 10 (a)
of the National Labor Relations Act it gave the Board authority.
to prevent any person from engaging in any unfair labor practice
affecting commerce, and in Section 2 (6) of the Act defined com-
merce to include "trade . . . within . . . any Territory." [Em-
phasis supplied.]
It is also to be noted that by contrast, in framing the Fair Labor
Standards Act, where "commerce" is defined as "trade . . . among the
several States or from any State to any place outside thereof," Con-
gress did not define commerce differently with respect to Territories
but instead defined the term "State" to include "any territory or pos-
session of the United States." 7 The Supreme Court has heretofore
pointed out that when Congress describes the commerce which is regu-
lated differently in different Federal acts that-"In so describing the
range of its control, Congress is not indulging stylistic preferences;"
but is "deciding what matters are to be taken over by the Central gov-
ernment. . . ." 8 A fortiori, when in one Act like Taft-Hartley,
Congress not only defines the commerce which is regulated with re-
spect to Territories differently from that defined in other Federal acts,
but also differently from the definition with respect to States in the
very same Act-Congress was obviously indulging in something more
than mere "stylistic preferences." When it told this Board in Section
2 (6) that the Act regulates "trade . . . within . . . any Territory"
although not trade within States, I regard this as a legislative mandate
the Board is bound to respect. The majority, however, obliterates the
distinction which Congress drew as between States and Territories in
defining "commerce" and chooses to ignore the mandate.
6 N. L. R. B. v. G onzales Padin Company, 161 F. 2d 353 (C. A. 1).
7 Sec. 3 (h), Fair Labor Standards Act of 1938, 52 Stat. 1060, 29 USCA 201.
8 Polish National Alliance v. N. L. R. B., 322 U. S. 643, 647.
CANTERA PROVIDENCIA 851
The majority's sole asserted reason for its action in adopting U. S.
standards which are largely predicated on inflow and outflow as the
test for jurisdiction in the Territories-that the impact on "commerce"
of business operations in the Territories is no greater than that of sim-
ilar enterprises located in the States-is thus revealed as resting on
a legal premise which is patently false in the face of Section 2 (6) of
the Act. While I do not believe that any policy considerations could
justify the action, the majority give no indication of what considera-
tions impel hem to take this radical step contrary to a long-estab-
lished rule of plenary jurisdiction in the Territories. There is even
lacking the sometimes hollow generality about "effectuating the pur-
poses of the Act." Surely the Congress, employers, employees, and la-
bor organizations in the Territories who are denied the benefits of the
Act, and the interested public, are entitled to know what considera-
tions are deemed sufficient to move a majority of this Board to retreat
from a plenary policy in the Territories. As I noted in my Breeding
Transfer Company dissentI from the cutting of the Board's jurisdic-
tion in the U. S. by the adoption of the new standards, that action was
explainable by a previously expressed desire to reallocate more author-
ity to the States. Here, however, there is no meaningful explanation
available of what moves a majority of the Board to further shrivel
its jurisdiction by making a major cut in the area of its jurisdiction
over the Territories.
A further important consideration is the fact that the cutting of
the Board's plenary jurisdiction will mean an absence of any regula-
tion or control of industrial disputes in these excised areas in the Ter-
ritories. And the stringent U. S. industry standards, like the
$3,000,000 gross receipts tests for utilities and local transit systems,
may well exclude enterprises which are of great importance to the
economy of the Territories whose cities may not be large enough to
have utilities meeting the U. S. standards. To my knowledge neither
Alaska nor Hawaii has any administrative machinery to do this work.
Moreover, although there is an Insular Board in Puerto Rico, our own
decisions have previously pointed out that under judicial decisions,
even where such machinery is set up, local authorities are powerless
to act even in cases where the Board declines jurisdiction. In the
Panaderia case,10 the Board said :
Section 10 (a) of the amended Act permits the National Labor
Relations Board to cede jurisdiction over cases to any State or
Territorial agency only if the provisions of the State or Terri-
torial statute applicable to the determination of such cases are not
9110 NLRB 493
19 Panaderia Sucestion Alonso, 87 NLRB 877, 879.
344056-55-vol. 111-55
852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
inconsistent with the corresponding provisions of the amended
Act. Because the differences between the present Federal and
Insular statutes are substantial, the National Labor Relations
Board may not cede jurisdiction over any cases to the Insular
Board. An attempt to define an appropriate area for action by
the Insular Board over cases involving essentially local business
enterprises has proved unworkable and has been abandoned by the
Insular Board.' The Supreme Court of Puerto Rico itself has
recently held 10 that Section 10 (a) of the Labor Management
Relations Act, 1947, prohibits the Insular Board from exercising
jurisdiction over matters which are within the scope of the Fed-
eral Act. Thus, at the present time, even if we were to decline
jurisdiction in the instant case, the Insular Board would be pow-
erless to act.
0 Puerto Rico Labor Relations Board, Third Annual Report, pp. 8-9.
10 Bayamon Transit Company , Sucesora v Puerto Rico Labor Relations Board, et at.,
70 P. R . Sup. Ct. No. 3, p. 292 (July 15, 1949).
In other words, the majority's action can only constitute a contribution
to chaos in the areas now excised from the Board's jurisdiction in the
Territories, whether or not it is motivated by a desire to withdraw in
favor of local authorities. If it is so motivated, the withdrawal is sub-
ject to the additional objection that it is a circumvention of the cession
requirements of Section 10 (a) of the Act-an objection I similarly
-earlier made with reference to the U. S. standards themselves and
explicated in my Breeding Transfer dissent.
I further note that while this decision clarifies the question of the
Board's policy with respect to jurisdiction over Territories, it neces-
sarily leaves confused the question whether the Board will continue to
follow the old plenary policy in the District of Columbia with respect
to which Congress has defined "commerce" in Section 2 (6) as it has
with respect to Territories, or whether the U. S. standards are appli-
cable there too.
In conclusion, I submit that when the Act itself directs this Board
to exercise jurisdiction over all trade within the Territories; when the
Board has proceeded on that basis for a number of years without com-
ment or alteration of the statute by the Congress; when the exercise
of such plenary jurisdiction is supported by the courts; and when a
rescission of such jurisdiction will leave commerce within those areas
unprotected, I cannot but believe that this Board is derelict in the per-
formance of its statutory duty when it retreats from a plenary policy i n
the Territories. I can find no legal or policy justification for such
action and the majority fails to give any.