Casey Welding Works

National Labor Relations Board - Board Decisions

Jan 25, 1954

107 N.L.R.B. 929 (N.L.R.B. 1954)

CASEY WELDING WORKS 929
Hedges, 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 Employer is engaged in commerce within the meaning
of the National Labor Relations Act.
2. The labor organization named below claims to represent
certain employees of the Employer.
3. We find that the petition in the case has been properly
filed and complies in all respects with the provisions of Section
9 (e) of the amended Act.'
4. All cannery warehousemen, food processors, drivers,
and helpers at the Employer's Hillsboro, Oregon, plant, ex-
cluding all office clerical and professional employees, guards,
and supervisors as defined in the Act, constitute a unit ap-
propriate for the purposes of an election under the provisions
of Section 9 (e) of the Act.3
[Text of Direction of Election omitted from publication.]
2 The hearing officer referred to the Board the Union's motion to dismiss the petition on the
ground that, as its contract with the Employer had expired on July 1, 1953, the petition was
untimely. This motion is denied. The contract between the Employer and the Union provides
that it shall remain in effect after its expiration date and until a new agreement is negotiated.
The record also shows that the union-security provisions of the contract are presently being
enforced. In these circumstances, we believe that a deauthorization election is appropriate.
Cf. Great Altantic & Pacific Tea Company, 100 NLRB 1494. As this contract has been con-
verted to one of indefinite duration contingent on negotiation of a new contract and that ne-
gotiations for a new contract were being conducted at the time of the hearing, Member Murdock
concludes that a deauthorization election under Section 9 (e) is authorized and timely. See
Member Murdock's dissent in Great Atlantic & Pacific Tea Company, supra
3 The Union moved to dismiss the petition because the unit petitioned for did not conform to
the unit description set forth in the agreement between the Employer and the Union. We find no
substantial difference between the two unit descriptions. The motion is denied.
FRANK W. LADWIG d/b/a CASEY WELDING WORKS sand IN-
TERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL
AND ORNAMENTAL IRON WORKERS, LOCAL UNION NO.
507, AFL, Petitioner. Case No. 30-RC-906. January 25, 1954
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before F. T. Frisbey,
hearing officer. The hearing officer's rulings made at the
hearing are free from prejudicial error and are hereby af-
firmed.
Upon the entire record in this case, the Board finds that no
question affecting commerce exists concerning the representa-
i The Employer's name appears as corrected at the hearing.
107 NLRB No. 185.
930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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:
The Employer contends that the Board has no jurisdiction
over the instant proceeding because it is not engaged in inter-
state commerce or any business affecting interstate commerce
within the meaning of the Act.
During the year ending September 2, 1953, the Employer re-
ceived a direct inflow of supplies from out of State valued at
approximately $ 6,000, and an indirect inflow of about $ 1,000.
Gross sales for the year were approximately $ 210,000, none
of which were to out-of-State customers . Of this amount, the
Employer sold goods and furnished services valued at not more
than $48,000 ' to (a) public utilities and transit systems, (b)
instrumentalities and channels of interstate commerce , and (c)
enterprises engaged in producing or handling goods destined
for out-of - State shipment , or performing services outside the
State , in the value of $25,000 per year or more. The Employer,
during the same period, sold supplies in the value of $ 1,220 to
the United States Air Force to be installed in an air force base.
In addition , the Employer during that period performed
services as a subcontractor , valued at $ 9,000, in the con-
struction of an administration building for an airport, Peterson
Field, owned by the city of Colorado Springs, Colorado. The
Employer also performed $ 6,000 in services , again as a sub-
contractor , in the erection of a television station. Both the
administration building and the television station are still in
the process of construction . The airport is used by at least 1
national airline, Braniff Airlines , and the United States Air
Force has contracted for its use . The television station, KRDO,
will be affiliated with the National Broadcasting System when
it is completed . We find that the airport and television station
are instrumentalities and channels of interstate commerce.
However, the Employer contends that the value of the Em-
ployer ' s subcontracts on these two construction projects may
not be used in determining whether the Board has jurisdiction
over this case because the contractors in each instance are
not, themselves , engaged in interstate commerce. We find
merit in this contention . It is clear that the Employer's
services as a subcontractor for the projects are twice re-
moved from interstate commerce. Accordingly , as the Board
recently stated , 3 to count the value of these services in de-
termining whether the Employer meets the Board ' s juris-
dictional standards enunciated in the Hollow Tree Lumber
2 The Employer contends that the correct amount is approximately $45,000, because it asserts
that some of these sales and services were to concerns which are not engaged in interstate
commerce or do not have annual out-of- State sales in the amount of $25 , 000 or more. In view
of our disposition of this case , we do not find it necessary to resolve this issue.
3Brooks Wood Products , 107 NLRB 237.
CASEY WELDING WORKS 931
Company4 decision would be an unwarranted extension of that
doctrine.
For the same reason, we believe that the Employer's
services as a subcontractor in the erection of the administra-
tion building do not substantially affect the national defense
effort within the meaning of the rule laid down in the West port
Moving and Storage, case .5 Nor do we think that the Emp oyer's
sales of $1 , 220 to the Air Force substantially affect the
national defense.
In view of the foregoing , we find that although the Employer
is engaged in commerce , the policies of the Act would not be
effectuated by asserting jurisdiction in this case.' Accordingly,
we shall dismiss the peitition.
[The Board dismissed the petition.]
Member Murdock, dissenting:
I dissent from the dismissal of the petition in this case on
jurisdictional grounds because I believe that the majority, in
overruling Edward Besch & Sons? and substituting for it their
"twice removed from interstate commerce" standard is de-
parting from the standards of the Hollow Tree case despite
their protestations to the contrary.
The Employer , in addition to furnishing approximately
$48,000 worth of services to public utilities and transit
companies , certain instrumentalities and channels of inter-
state commerce , and enterprises engaged in producing or
handling goods destined for out-of -State shipment of the
value of at least $25,000 , also performs services as a sub-
contractor necessary to the construction of an administration
building on an airport and of a television station. The United
States Air Force has contracted for the use of the airport
facilities . The majority properly finds that the airport and the
television station are instrumentalities and channels of inter-
state commerce , but because the prime contractor is not
directly engaged in interstate commerce, the majority finds
that the Employer ' s services in connection with the construction
of the two buildings are twice removed from interstate com-
merce and are therefore not to be considered as indirect
outflow under the Hollow Tree standards.
Their decision ignores the fact that the impact of the Em-
ployer's operations on interstate commerce, realistically
491 NLRB 635 . However, we do not hereby adopt the Board ' s ruling in that case as a per-
manent policy.
5 91 NLRB 902
6 Brooks Wood Products, supra.
To the extent that our holding herein is inconsistent with the Board 's earlier decision in
Edward Besch & Sons , 92 NLRB 520, that decision is hereby overruled.
7 92 NLRB 520.
932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
appraised , clearly brings the Employer within the limits of
the Hollow Tree standards e
In the instant case there can be no doubt that the majority
would assert jurisdiction over the Employer if he performed
his services under prime contracts with the airport and the
television station, because in their view the services would
not then be " twice removed from interstate commerce." But
I submit that the impact of the Employer ' s operations on the
efficiency and operation of the airport and the television
station would be no greater then than they are under the
existing circumstances . The impact would be precisely the
same in either ease. In either case, a strike of the Employer's
employees would obstruct the construction of the buildings
and necessarily lead to an impairment in the efficiency and
operation of these instrumentalities and channels of commerce
to the same degree.
It is thus obvious that the majority's new standard for de-
termining the desirability of asserting jurisdiction leads to
inconsistent and unrealistic results, in that of two employers
whose operations affect interstate commerce to the same
extent, the majority would assert jurisdiction over one and not
the other . This inconsistency is the direct result of the fact
that although the majority pays lip service to the principles
of the Hollow Tree case it misunderstands its purpose. For
its only purpose is to measure the impact on commerce
exerted by an employer ' s operations regardless of whatever
legal or financial arrangements the employer may enter into
in disposing of the materials or services produced by his em-
ployees. In my view this is the only proper approach open to
the Board in determining whether or not to assert jurisdiction,
and it is based on the same considerations used by the courts
in determining the existence of the Board ' s legal jurisdiction.
It is the proper approach because it proceeds on the theory that
it is the nature of the work done and the effect of a cessation
thereof which afford an adequate basis for the exercise of the
Board's jurisdiction and because it results in a consistent
exercise of jurisdiction over employers whose operations af-
fect commerce to the same extent.
But my disagreement with the views of my colleagues is not
limited to their conclusion on the application of the Hollow Tree
test as a basis for taking jurisdiction . Idisagree also with their
view that the Employer ' s services as a subcontractor in the
construction of the airport administration building do not sub-
stantially affect the national defense effort because the services
are, in the majority's phrase, "twice removed ." Believing as I
do that such a standard does not correctly appraise the impact
of a strike of the Employer ' s employees on the construction of
the administration building , it follows that the standard is no
BSee Thomas Rigging Company , 102 NLRB 65.
R. C. WILLIAMS & COMPANY, INC. 933
more accurate in its appraisal of the effect of such a strike on
the national defense effort.
The value of the services performed by the Employer in the
construction of the airport administration building are $9,000.
During the same period , the Employer also sold supplies
valued at $1,220 to the United States Air Force. The Board has
asserted jurisdiction under the national defense section of its
jurisdictional plan over employers who have rendered far less
services in connection with the national defense effort.' I have
fully set forth my views onthe liberal approach to the assertion
of jurisdiction in the application of the national defense con-
cept of the plan in my dissent in Taichert' s, Inc.,10 and I shall
not repeat them here. I doubt our competency to pass on the
necessity or importance to the national defense of the Air
Force's action in contracting for the use of the airport. To
the untrained and uninformed observer elements of our national
defense system considered in isolation may appear to be not
strictly necessary or "substantial." If those upon whom the
responsibility rests have determined that element to be a neces-
sary part of the total defense system, I would accept their
judgment as controlling.
On the basis of the above considerations I would find that the
Employer's operations sufficiently affect interstate commerce
and the Nation ' s defense effort to warrant the Board ' s assertion
of jurisdiction in this matter.
9Clyde M. Furr, 98 NLRB 1288. Furr had a $1,740 subcontract to do caulking on 3 dor-
mitories and a fire station being erected at one end of an airport where the principal con-
tract in the amount of $305,000 was with the U. S. Army Corps of Engineers.
10107 NLRB 779.
R. C. WILLIAMS & COMPANY, INC. and RETAIL CLERKS IN-
TERNATIONAL ASSOCIATION, AFL, Petitioner. Case No.
2-RC-6240. January 25, 1954
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before John J. Carmody,
hearing officer. The hearing officer' s rulings made at the
hearing are free from prejudicial error and are hereby af-
firmed.
Upon the entire record in this case , the Board finds:
1. The Employer is engaged in commerce within the meaning
of the Act.
2. The labor organizations involved claim to represent
employees of the Employer.'
'Office Employees International Union, Local 153, AFL, was permitted to intervene at the
hearing. Although served with notice of hearing American Federation of Office Employees
Local 20940 did not appear or intervene.
107 NLRB No. 195.