Charleston Transit Co.

National Labor Relations Board - Board Decisions

Aug 26, 1957

118 N.L.R.B. 1164 (N.L.R.B. 1957)

1164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
scratch." For the reasons set forth above with respect . to the first
issue under objection No. 1, we find that these similar supplementary
statements by the Employer did not constitute threats to discontinue-
existing employee benefits prior to bargaining if the Petitioner won
the election , and that such statements therefore did not constitute in -
terference with a free election.
In view of the foregoing , we overrule the Petitioner's objections,.
and we shall certify the results of the election.
[The Board certified that a majority of the valid ballots was not.
cast for District No. 98 , International Association of Machinists,.
AFL-CIO, and that said organization is not the exclusive representa-
tive of the Employer 's employees in the unit found appropriate.]
MEMBERS MURDOC$ and BEAN took no part in the consideration of'
the above Decision and Certification of Results of Election.
Charleston Transit Company and Amalgamated Association of
Street , Electric Railway and Motor Coach Employees of
America, AFL-CIO.' Case No. 9-CA-623. August 26, X957
SUPPLEMENTAL DECISION AND ORDER
On November 30,1953, Trial Examiner Sidney S. Asher, Jr., issued
his Intermediate Report in this proceeding finding that Respondent,
Charleston Transit Company, was not engaged in commerce, or in
activities affecting commerce within the meaning of the Act, and
recommended that the complaint in this matter be dismissed. There-
after, the General Counsel, the Respondent, and the Union filed
exceptions to the Intermediate Report and supporting. briefs.
On March 30, 1955, the Board majority issued its Decision and
Order herein finding that the Respondent's operations did not satisfy
the minimum jurisdictional requirements prescribed in the Greenwich
Gas case 2 for local public utilities and transit systems, and that it
would, therefore, not effectuate the policies of the Act to assert juris-
diction over the Respondent. The Board majority, accordingly, dis-
missed the complaints Thereafter, a motion for rehearing and
reconsideration filed on behalf of the Union was denied by the Board."
Subsequently, the case was considered by the United States Court of
Appeals for the District of Columbia upon the Union's petition for
' Herein called Union.
8 The Greenwich Gas Company and Fuels, Incorporated , 110 NLRB 564 . The Board
there determined to assert jurisdiction over local public utility and transit systems affecting
commerce only when their gross volume of business was $3,000 ,000 or more per annum.
8111 NLRB 1214 (Member Murdock dissenting).
& Members Murdock and Peterson dissented.
118 NLRB No. 160.
CHARLESTON TRANSIT COMPANY 1165
review. In its decision of October 25, 1956, the court remanded the
case to the Board for further proceedings.'
On February 11, 1957, the Board received from the Respondent a
motion to dismiss the complaint on the record before it, and on
February 12, 1957, the Board received from the Union a statement
opposing the motion and a request that the Board hold a hearing on
the validity of the Board's jurisdictional standards as applied to the
transit industry. On March 27, 1957, the Board issued a notice to
show cause stating, in part, as follows :
Upon consideration of the Order of the Court of Appeals, the
Board has determined to grant the parties an opportunity to be
heard on the validity of the jurisdictional standard established
in Greenwich Gas Company and Fuels, Inc., 110 NLRB 564, as
applied to the present case, with due regard to the Board's decision
in Wemyss d/b/a Coca Cola Bottling Co., of Stockton, 110 NLRB
840.
This notice concluded with a direction to the parties to "show cause
to the Board in writing why it should or should not hold its jurisdic-
tional standards to be valid as applied to the case at bar." 6
In the foregoing notice, the Board further stated that it was de-
ferring final action on the Respondent's motion for dismissal of the
complaint and the Union's request for a hearing as to the validity of
the transit industry standard.
On April 20, 1957, the Respondent and the Union filed briefs with
the Board setting forth their contentions and arguments regarding
the issue raised by the Board's Decision, the. remand, and the notice
to show cause.
The Union's first contention is that the notice to show cause is unduly
limited in scope and does not afford the Union the hearing contem-
plated by the court. We find no merit in this contention. The ques-
tion presented by this contention is whether the court ordered a hear-
ing on the validity of the Board's jurisdictional standard for the
transit industry, or on the validity of the retroactive application of
that standard to this case. On analysis of the court's opinion, we
believe the latter was intended. The court stated, in part, as follows:
Had the Board finally declined jurisdiction on the ground that the
enlistment of its facilities would not effectuate the policies of the
Act because the case did not involve a serious enough effect upon
interstate commerce to justify assumption of jurisdiction, con-
sidering the total caseload of the Board, we would hesitate to
6 Amalgamated Association v. N. L. R. B., 238 F. 2d 38.
6 Member Murdock dissented from the issuance of the notice to show cause, stating that
he would reopen the record and order a bearing on the validity of the Board's jurisdictional
standard for the transit Industry.
1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
disagree.... Here the Board dismissed the complaint solely by
reason of a standard established in the Greenwich Gas case... .
These criteria were applied to the present case after the issuance
of the complaint and after conclusion of the hearings before the
trial examiner. In these circumstances we think that the Union
should have been heard on the validity of these standards as ap-
plied to this case. We need not pass upon the question whether, in
cases arising subsequent to the adoption of the new jurisdictional
rule, the standards used for declining jurisdiction could be said
to be arbitrary. [Emphasis supplied.]
The Union's main contention throughout this case has been that the
Board's transit industry standard is invalid because it excludes a
major part of that industry. This contention applies equally to cases
which, like the instant one, were pending before the Board when the
standard was promulgated and to any cases which have arisen since
the adoption of the standard. Had the court intended that the Board
grant a hearing on this contention, it is not clear why it did not so state
but instead merely provided for a hearing on the validity of the Green-
wich Gas standard "as applied to this case," and expressly reserved
decision as to the validity of that standard for cases arising since its
adoption. This would seem to imply that the court was concerned
only with the validity of the "retroactive" application of the Greenwich
Gas standard to cases which like the instant one were pending before
the Board when the standard was adopted and not with the validity
of the standard as applied prospectively as well as retroactively.
The reason for the court's special concern over the retroactive appli-
cation of the standard in the instant case may be attributed to the fact
that one of the principal reasons for adopting the standard is to permit
the Board to save its energies and resources for the processing of cases
having a truly substantial impact on the national economy. The
court may well have had some question whether this objective could be
served in a case like this where a major part of the processing of the
case had already been completed before the standard was adopted.
In view of the foregoing, we believe that the sole issue which the
Board is required to consider under the remand order is the validity of
the retroactive application of the Greenwich Gas standard to the case at
bar. The notice to show cause, by citing the Stockton Coca Cola case,.
gave notice to the parties that the Board would consider any material
they wished to submit dealing with the issue. It was in the Stockton
case that the Board announced that it would apply its 1954 jurisdic-
tional standards, including the Greenwich Gas rule, to all cases pending
before it when the standards were adopted.
The Union, in its answer to the notice to show cause, appears to con-
cede the power of the Board to make such a. retroactive application of
CHARLESTON TRANSIT COMPANY 1167
any jurisdictional standards it may adopt,' provided the standard
is otherwise valid. Apart from this apparent concession of the Union,
our belief that the retroactive application of the Greenwich Gas
standard to the case at bar is proper is reinforced by the following-
considerations :
Although it is true that the standard was adopted in part to conserve
the funds and time of the Board, and although the importance of this
consideration is diminished in this case by the fact that a hearing had
been held and the Intermediate Report had issued before the standard
had been adopted, the application of the standard still resulted in
substantial saving by the Board in both time and funds. The dismissal
of the instant case obviated the need for further consideration of the
case on the inerits, and for expending time and money on any court
litigation that might result from the Board's action on the merits.
Also the instant case was one of many proceedings before the Board
in the same state of completion, which met the old, but not the new,
jurisdictional standards.' Thus, to assert jurisdiction herein would
have necessitated similar action in such other cases, thereby entailing-
additional expenditure of time and money.
For the foregoing reasons, we find that the retroactive application
of the public utility standard to this case was consistent with the afore-
mentioned objective of the standard. We accordingly conclude that
the fact that the standard was retroactively applied is not sufficient
reason for holding it invalid as applied to this case.
The Union's next contention is that under the terms of the remand
the Board is required to give the Union an opportunity for an oral
hearing before the Board on the issues raised by the remand. The
court's language does not specify the nature of the hearing to be
granted. If, as we believe, the sole issue remanded was the validity of
the retroactive application of the standard, no useful purpose would
be served by an oral, as distinguished from a written, presentation,.
and the Union does not contend otherwise. The Union does contend,
however, that (1) the issue remanded was the validity of the 1954
jurisdictional standard for the local public transit industry, and (2)
such issue cannot be resolved on the basis of written briefs, but only
on the basis of the presentation of evidence, through witnesses subject
to cross-examination, as to the impact of the Greenwich Gas standard
on the local public transit industry, and, specifically, as to what portion.
of that industry would be removed from the protection of the Act by
such standard.
7 See Optical Workers Union v . N. L. R. B., 227 F. 2d 687 , 691, 229 F. 2d 170 (C. A. 5),.
cert. denied 351 U. S. 963; N. L. R. B. V. Kartarik, Inc., 227 F . 2d 190 (C. A. 8).
8 At the time of the adoption of the 1954 jurisdictional plan, there were 27 such cases
in which the intermediate Report of the Trial Examiner had issued but which had not yet
been decided by the Board.
1168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As to (1), for reasons already stated, we do not construe the opinion
of the court as requiring us to reexamine the validity of the transit
industry standard. As to (2), even if we were so to construe the opin-
ion and reexamine the standard, there would still be no need for the
presentation of evidence on the impact of the standard, for, as stated
below, even if we accept as correct the statistics presented in the
Union's brief in response to the notice to show cause, and in the motion
for rehearing and reconsideration, previously filed with the Board,
designed to show the impact of the standard on the local public
industry, we would still adhere to that standard.
The Union urges that the standard is unduly restrictive because it
would exclude 126 companies, serving over 129 cities with a population
of 50,000,000, which employ 25,000 employees? However, even if we
accept these statistics, the fact remains that a majority of employees
in the local transit industry would still have access to the Board's
processes.10 While the Board, in the Breeding Transfer case,'1 cited
statistics implying that its new standards would not affect any sub-
stantial part of the local public transit industry, the Board's decision
to apply the Greenwich Gas rule to that industry was not predicated
solely on the supposed insubstantial effect of that rule but upon a com-
plex of factors. The primary consideration was the reduction of the
Board's caseload, and, as stated in the Breeding Transfer case, staff
studies had indicated that the total effect of the adoption of the 1954
standards, including the Greenwich Gas standard, would be to reduce
the Board's normal caseload by 10 percent. The Union does not
challenge the correctness of this estimate. Accordingly, we find in-
sufficient basis in the Union's statistics, even assuming their accuracy,
for modifying our local public transit industry standard.
The Union also contends that under the decision of the Supreme
Court in the Guss and other cases,12 jurisdiction over unfair labor
practices by enterprises whose operations affect interstate commerce
is vested exclusively in the Board, and State agencies do not acquire
jurisdiction because the Board declines to act. The Union reasons from
this premise that the curtailment of the Board's jurisdiction with
respect to the local transit industry and the consequent refusal of the
Board to intervene in labor disputes in that industry may result in
an increase in industrial strife. For this reason it asks the Board
O The Union also asserted in effect, in its motion for rehearing filed with the Board
in the original proceeding herein, that the Greenwich Gas standard would in addition ex-
clude a substantial part of the 23,000 employees of local public transit companies serving
suburban areas and cities with a population of less than 50.000 persons.
1° According to the statistics cited in the Union 's brief before the court of appeals in
the instant case , 95,000 employees in the local transit industry are employed by firms
which meet the 1954 standard.
11110 NLRB 493.
12 Guss v . Utah Labor Relations Board , 353 U. S. 1; Amalgamated Meat Cutters V.
Fairlawn Meats , Inc., 353 U. S . 20; ban Diego Bldg. Trades Council v . Garmon, 353
U. S. 20.
CHARLESTON TRANSIT COMPANY 1169
to reestablish its 1950 jurisdictional plan or otherwise revise its present
standards so as to bring the Respondent's employees within the
protection of the Act. As the Board majority has frequently stated,
the 1954 standards were not predicated on the assumption that the
States had authority to dispose of those cases which did not meet our
jurisdictional requirements. In any event, assuming that the Guss
and companion cases can be read to require a reappraisal of our
standards, we do not believe that the present case, limited as it is to
the local public transit industry, is the appropriate vehicle for such
an overall reevaluation, especially as we have already applied the
1954 standard in an earlier stage of this case. Nor have we any reason
to believe that the application of the present standard to the local
transit industry has resulted, or will result, in the labor strife envisaged
by the Union.
The Union 'next contends that our standard is contrary to law.
However, the Board's power to adopt jurisdictional standards has been
upheld by various Federal courts of appeal, which have recognized
the Board's discretion to decline jurisdiction over enterprises which,
as here, are essentially local in character, although they may affect
commerce within the meaning of the Act.13 While the precise question
of the power of the Board to delimit its jurisdiction by prescribing
minimum dollar volume figures, as in the instant cases, has not been
passed upon by the Supreme Court, dicta in decisions of that Court
imply approval of the Board's position in that regard.14
Finally, the Union contends that 2 recent rulings by the Board,
clarifying or modifying the Board's jurisdictional standards, consti-
tute precedent for modifying the Greenwich Gas standard by assert-
ing jurisdiction over local public transit companies on the basis of
indirect outflow, i. e., services to firms having direct annual outflow
of $50,000 or more. However, of the two cases cited by the Union, the
Potash Mines case 15 is distinguishable from the case at bar in that
the employer there, while operating to a small extent as a local public
transit company, was essentially a contract carrier, the bulk of its
revenues being derived from charter operations. The Paean case 16
dealt with a local trucking firm. Accordingly, as both of these cases
were deemed to involve industries or operations other than local public
13 Local Union No. 12, Progressive Mine Workers of America , District No. I V. N. L. R. B.,
3,89 F. 2d 1 (C. A. 7), cert. denied 342 U. S. 868 ; Hale8ton Drug Stores, Inc. v. N. L. R. B.,
187 F. 2d 418 (C. A. 9), cert, denied 342 U S. 815 ; Optical Workers Union v. N. L. R. B.,
supra.
14 N. L. R . R. v. Denver Bldg. Trades Council , 341 U. S. 675 , 684; N. L. R. B. v. Office
Employees International Union, Local No. 11, 353 U . S. 303.
15 Potash Mines Transportation Company, Inc., 116 NLRB 1295. The Board asserted
jurisdiction on the basis of indirect outflow , i. e., services to firms having $50 ,000 direct
outflow per annum.
16 Pavan Motor Freight , Inc., 116 NLRB 1568. The Board there asserted jurisdiction on
the basis of indirect outflow.
450553-.98-vol. 118-75
1170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
transit, they furnish no precedent for extending the indirect outflow
concept of the Respondent.
Accordingly, in view of all the foregoing considerations, and assum-
ing that such finding is required by the remand herein, we find that
the enlistment of our facilities and energies in this case would not
effectuate the policies of the Act because the case does not involve a
serious enough effect upon interstate commerce to justify assumption
of jurisdiction, considering the total caseload of the Board.
What we have said thus far is dispositive of the substantive and
procedural issues raised by the remand, and requires that we adhere
to the prior decision herein dismissing the complaint.
[The Board dismissed the complaint.]
MEMBER MURDOCK, dissenting :
I dissent from the majority's disposition of this case. I do not
believe it correctly construes the meaning of the court's statement
"that the Union should have been heard on the validity of the Board's
transit industry standards as applied in this case," or that the hearing
accorded the Union fully complies with the court's order. Nor can
I accept the majority's ultimate conclusion that the Board should
"adhere" to the 1954 standard for the transit industry.
The question of the scope of the court's remand of this proceeding
to the Board is, as stated by the majority, whether the court ordered
the Board to grant the Union a hearing on the validity of the Board's
$3,000,000 jurisdictional standard for the transit industry, or only
on the validity of the retroactive application of that standard to this
case. The majority finds that the court intended only a hearing on
the validity of the retroactive application of the standard. I cannot °
agree with this interpretation of the court's opinion for the following
reasons. The issue of whether the Board has authority to apply
properly fashioned jurisdictional standards retroactively to cases
pending before it at the time of the adoption of the standards was not
raised by the Union either before the court or in the proceedings before
the Board.17 In its brief to the court, in support of its petition for
review, the Union states the questions presented to the court as follows:
1. Whether the Board has jurisdiction under the Act or the
Constitution of the United States over the operation of the Inter-
venor [the Employer herein].
2. Assuming that the Board has jurisdiction over the Inter-
venor's operations, whether in the establishment of the new
jurisdictional standards for the transit industry, on the basis of
which the Board refused to assert jurisdiction over the Inter-
17 In its motion for rehearing and reconsideration to the Board, the Union made clear
that it was not objecting to the retroactive application of the standard but rather to the
fact that it believed the standard to be arbitrary and contrary to law.
CHARLESTON TRANSIT COMPANY 1171
venor, the Board acted contrary to law, and abused and exceeded
such discretion as it might have to limit its jurisdiction.
[Emphasis supplied.]
3. Whether the Board's denial of Petitioner's motion for re-
hearing and reargument was, under the circumstances of the case,
a denial of due process.
In its brief to the court the Board agreed with the Union's statement
of the questions presented, stating :
The questions presented were formulated in the prehearing con-
ference stipulation and are correctly set forth at the outset of
the Petitioner's [the Union's] brief.
It does not seem reasonable to conclude that the court would have
ordered a hearing on an issue which the Union had not raised before
the Board and which the parties had agreed was not before the court
for decision. Accordingly, I must conclude that the hearing ordered
by the court is a hearing on the broader question of the validity of
the standard.
I find that after spending a major part of their opinion in an effort
to demonstrate that the court's remand does not require the Board to
reexamine the validity of the transit industry jurisdictional standard,
my colleagues, nevertheless, end up saying that "even if we were so
to construe the opinion and reexamine the standard . . . and even if
we accept as correct the statistics presented in the Union's brief .. .
we would still adhere to that standard.'' [Emphasis supplied.] This
treatment hardly suggests the kind of serious reexamination of the
merits of the jurisdictional standard which the remand envisaged
and to which the Union was entitled, accepting the broad interpre-
tation of its scope as the correct one. Furthermore, in disposing of
an argument that "the Guss and companion cases can be read to re-
quire a reappraisal of our standards," the majority says "we do not
believe that the present case, limited as it is to the local public transit
industry, is the appropriate vehicle for such an overall reevaluation,
especially as we have already applied the 1954 standard in an earlier
stage of this case." As I understand what the majority means, it is
that they do not wish to reexamine the 1954 standards on a piece-
meal basis, and that this case is not an appropriate vehicle for an
overall reevaluation. This statement likewise does not seem con-
sistent with a conclusion that a thorough reexamination of the merits
of this particular jurisdictional standard has been made at this time.
Furthermore, I am of the opinion that the character of the hearing
accorded the Union falls short of compliance with the court's order.
The court ordered a hearing. In its notice to show cause the ma-
jority has only afforded the Union a chance to submit argument in
writing as to why the Board should or should not hold its jurisdictional
1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
standard to be validly applied in this case "with due regard to the
Board's decision in Wemyss d/b/a Coca-Cola Bottling of Stockton,
110 NLRB 840." A hearing includes, as the Court of Appeals for the
District of Columbia has said:
The opportunity to know of the claims of his opponent, to hear
the evidence introduced against him, to cross-examine witnesses,
to introduce evidence on his own behalf and to make argument.
[Emphasis supplied.] 18
And as the Supreme Court has said:
The right to a hearing embraces not only the right to present evi-
dence but also a reasonable opportunity to know the claims of
the opposing party and to meet them. The right to submit argu-
ment implies that opportunity, otherwise the right may be a bar-
ren one.19
Thus when the court provided that the Union should be heard on the
validity of the Board's transit industry standard, it was, in my
opinion, thinking of something more than the mere right to submit
written argument. I do not believe that the necessity of affording the
Union a full hearing on its contention that the transit standard is
invalid may be avoided by the technique of contingently "accepting as
correct" the Union's statistics on an alternative assumption that the
scope of the remand was broader than the retroactivity point to which
the notice to show cause was limited.
The majority inadequately summarizes the Union's position as urg-
ing that the transit standard is unduly restrictive because it would ex-
clude 126 companies serving 129 cities, and employing 25,000 em-
ployees. The majority finds that such statistics afford an insufficient
basis for modifying the standard because (1) the majority of the em-
ployees in the industry still have access to the Board's processes; (2)
though the majority opinions in the Breeding Transfer and Green-
wich Gas cases did cite statistics implying that its new standards would
not affect any substantial part of the local transit industry, the stand-
ard was not based on that alone, but rather on a complex of factors,
including, primarily, a desire to reduce the Board's entire caseload by
approximately 10 percent; and (3) the Union has failed to challenge
the correctness of this overall estimate as to the effect of the 1954
standards. This treatment of the Union's contentions serves to em-
phasize the necessity for a hearing in this case so that the Union may
have the right not only to present evidence, but also a reasonable
opportunity to know the claims of the opposing party-in this case
the Board-for without such a hearing, the Union's right to submit
1s Philadelphia Co. v. Securities and Exchange Commission , 175 F. 2d 808 (C. A., D. C.)
(1949).
Morgan v. United States, 304 U. S. 1 (1937).
CHARLESTON TRANSIT COMPANY 1173
argument is truly a barren one. In my view, the majority has failed
to understand, and therefore, contrary to its statement, cannot have
accepted as "correct," the Union's statistics. The Union presented sta-
tistics showing that in 1954 there were 1,605 companies engaged in
local transit operations in this country, employing 220,000 employ-
ees. Public-owned companies, which are exempt from the Board's
jurisdiction, employed 92,000 employees, leaving 127,600 employees
subject to the jurisdiction of the Board, 104,643 of which were em-
ployed by companies which operate in cities of over 50,000 popula-
tion. There are 232 such cities in this country. According to the
Union's figures 126 companies serving 129 cities and employing 25,000
employees are excluded from the Board's jurisdiction 20 Moreover,
almost all of the 1,339 companies serving cities and suburban areas
under 50,000 population are presumed to be excluded from the Board's
jurisdiction according to the Union's statistical computations. Of
this latter group, the privately owned companies employ a total of
23,000 employees, so that the total number of private transit employees
excluded from the Board's jurisdiction by the 1954 standard approxi-
mates 48,000 employees, or over 37.5 percent of the total of such
employees, and the inclusion of approximately 56 out of a total of over
1,600 companies furnishing local transit service means that over 95
percent of the companies are excluded from the Board's jurisdiction.
The Union's statistics were obviously designed to do 3 things : (1)
to demonstrate the inaccuracy of the Board's assumption in its Green-
wich Gas decision that less than 5 percent of the employees in this
industry would be excluded from the Board's jurisdiction; (2) to
demonstrate the inaccuracy of the Board's estimate that only ap-
proximately 50 percent of the transit companies would be excluded
from the Board's jurisdiction; and (3) to give force and meaning to
its contention that the $3,000,000 gross receipts standard bears no
reasonable relationship to the impact on commerce of a particular
transit enterprise because it does not permit consideration of either
(a) the amount of services rendered by a public utility or local transit
system to commercial or industrial enterprises which themselves are
engaged in commerce, or (b) the amounts of goods or materials utili-
ties and transit companies cause to be shipped in interstate commerce
for their own use. To emphasize further this lack of realism inherent
in the standard, the Union submitted an exhibit showing that not
one of the privately owned local transit companies serving cities of
over 25,000 population in the State of Illinois, one of the major in-
dustrial States of our Nation, comes within the Board's current juris-
dictional standard. I do not believe that a jurisdictional standard
' Of the 232 cities 17 are served by publicly owned transit companies . The remaining
215 cities are served by a total of 182 companies, thus leaving only 56 companies in this
group which are included within the Board's jurisdiction under the 1954 standard.
1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which ignores the actual effect on commerce of such enterprises-in-
deed the effect on commerce of approximately all but 56 of the
privately owned transit companies in the country-can be said to be
realistically designed to reflect the important role played in our in-
dustrial society by transportation. The Massachusetts Governor's
Labor-Management Relations Committee has pointed out that "an
interruption of other important types of services, such .as street rail-
way and bus transportation or telephone service, would disrupt pro-
duction and cause inconvenience and economic loss far beyond strikes
or lockouts in most other industries." 21
If the Union's statistics are, in fact, to be accepted as correct, I
cannot see that the Board has any other alternative than to reconsider
and liberalize its transit industry standard. For the Union has suc-
cessfully shown the inaccuracy of the Board's estimate expressed in
the Greenwich Gas decision which announced the standard, as to the
severity of the impact of the standard on the industry, a judgment
which was cited by the Board in defense of the reasonableness of the
standard. The Board seeks to avoid the effect of the Union's showing
by stating that in the Breeding Transfer decision it estimated that
"the total effect of the adoption of the 1954 standards, including the
Greenwich Gas standard, would be to reduce the Board's normal case-
load by 10 percent"; and that the Union has not shown that this esti-
mate was not correct. Plainly, whether the Board was correct in its
estimate as to the extent to which all the jurisdictional standards
would reduce its caseload is not determinative of whether one
standard-that for the transit industry-is a reasonable one, con-
sidering its impact on that industry and the industry's impact on
commerce. Moreover, the Union had no notice that it was expected
to meet any such burden nor could it have reasonably anticipated that
the Board would regard any such consideration as a material factor
in this case. To deny the merit in the Union's successful attack on
the impact of the transit standard, which is the one involved in this
case, on the ground that the Union has not successfully challenged the
Board's estimate as to the effect of all the standards on its caseload,
is an exercise in logic which I do not follow.
Particularly since the Union has successfully demonstrated the error
of the Board's original assumption as to the severity of the impact of
the $3,000,000 gross receipts standard on the industry, it would seem
to me that any thorough reexamination of this standard by the Board
would require a consideration of and an answer to the question, "why
a $3,000,000 gross receipts standard?" As pointed out in the dissent
of former Member Peterson and myself in the Greenwich Gas case
' Report of the Governor's Labor-Management Relations Committee (Massachusetts)
House Doe. No. 1875, March 18, 1947, pp. 20-21. as cited in 1.0 industrial and Labor
Relations Review, Cornell University (April 1957), p. 359 at p. 350.
CHARLESTON TRANSIT COMPANY 1175
which laid down the standard, the majority decision therein was silent
as to the justification. All objections to such a standard (except on
the number of employees and employers affected) set forth in the
dissent therein remained unanswered. They still remain unanswered.
I shall not reiterate them in detail here. But before reffirming a more
restrictive jurisdictional standard for utilities than for other indus-
tries, the Board as constituted today must consider that the Supreme
Court has said that
No distinction between public utilities and national manufactur-
ing organizations has been drawn in the administration of the
Federal Act, and, when separate treatment for public utilities was
urged upon Congress in 1917, the suggested differentiation was
expressly rejected. Creation of a special classification for
public utilities is for Congress, not for this Court. [Emphasis
supplied.] 22
Nor can the Board shunt aside and postpone for some future case, as
it indicates it has done, any consideration of the impact of the Supreme
Court's Guss decision. Any reexamination of the transit industry
standard which does not take into consideration the fact that the
Supreme Court has now answered a question which was open when
this standard was originally adopted, and has held that the States can-
not exercise jurisdiction over the no man's land created by this stand-
ard, cannot be a serious or realistic reexamination. Such a reevalu-
ation must necessarily give primary consideration to the fact that the
Board's continued refusal to exercise its powers now means that neither
can the States act in an area which traditionally has been deemed
peculiarly subject to governmental regulation, to protect the public
interest in the uninterrupted providing of utility and transit services.
Nor can the Board in this case ignore the additional fact that in the
Guss decision the Supreme Court plainly invited the Board to "greatly
reduce" the resulting "no man's land" problem by "reasserting its
jurisdiction." The reiterated statement in the majority opinion that
the transit industry standard was adopted to conserve the time and
funds of the Board in the light of the caseload likewise is at variance
with the concluding portion of the Cuss decision which states that
"The testimony given by the Chairman of the Board before the Appro-
priations Committee shortly before the 1954 revision of the jurisdic-
tional standards indicates that its reasons for making that change
were not basically budgetary." In casting grave doubt on the justifi-
cation.for and hence the validity of all the jurisdictional standards,
the Supreme Court has necessarily done so with respect to the standard
involved herein.
22 Amalgamated Association of Street Electric Railway & Motor Coach Employees v.
Wisconsin Employment Relations Board, 340 U. S. 383-391 (1951).
1176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Any realistic reexamination of the single $3,000,000 gross receipts
standard for all local public utilities and transit systems must neces-
sarily take into consideration that this standard has required the Board
to refuse to assert jurisdiction over a water utility furnishing water to
industrial customers including steel companies in Gary, Indiana-the
greatest steel-producing area in the world 23-and also over a water
utility in Butte, Montana, furnishing water equally indispensable to
the interstate production of copper by the Anaconda Company whose
Butte mines are the third largest copper-mining operation in the
United States. Now that the Board knows what it did not know when
it decided those cases-that the States are precluded from regulating
the labor relations of those utilities whose operations are so important
to industrial production-I do not understand how it can reaffirm such
a standard as a reasonable one.
Although there is obviously even less justification for the transit
industry standard today than when it was adopted, considering inter-
vening events, I can find no meaningful explanation or justification for
the majority's reaffirmation of the standard. Neither the parties, the
court, nor the public is told why gross receipts is the sole test-a test
which does not take into account at all, impact on commerce which is
customarily measured in terms of inflow, outflow, or services rendered
to firms which are engaged in commerce; nor why the standard is
stricter than for other industries; nor why so restrictive a figure is
used; nor why a standard announced in the case of a gas utility is
equally appropriate for a transit utility-a question in which the
court's opinion indicated an interest. I believe the court is looking
to the Board for answers to such questions. I do not believe it will
be satisfied with the generalization that the decision to apply the
Greenwich Gas standard to the transit industry was based upon "a
complex of factors," one of which was the reduction of the caseload;
nor with the failure to find merit in the Union's statistics for the reason
that it did not show error in the Board's estimate that all the 1954
standards would reduce the Board's overall caseload by 10 percent;
nor with the final sentence which mechanically repeats 1 sentence of the
court's opinion to find, "assuming that such a finding is required by the
remand herein," that "the enlistment of our facilities and energies
in this case would not effectuate the policies of the Act because the case
does not involve a serious enough effect upon interstate commerce to
justify assumption of jurisdiction, considering the total caseload of
the Board."
Events since the adoption of the 1954 standard for the transit in-
dustry, including the Guss decision, only confirm my original position
that the Board's mandate from Congress to protect commerce from
23 Gary Hobart Water Corporation , 115 NLRB 1575.
BURROUGHS CORPORATION 1177
the impact of labor disputes requires the Board to resume the prior
policy to assert jurisdiction over this Employer and over all public
utilities subject to the rule of de miitimis; and that our caseload does
not preclude our doing so.
MEMBER RODGERS took no part in the consideration of the above
Supplemental Decision and Order.
Burroughs Corporation and International Union of Operating
Engineers, Local 94-94A, AFL-CIO. Case No. O-CA-5254.
August 27, 1957
DECISION AND ORDER
On May 8, 1951, Trial Examiner John H. Eadie, issued his Inter-
mediate Report in this proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain af-
firmative action as set forth in the copy of the Intermediate Report
attached hereto. Thereafter, the Respondent filed exceptions and a
memorandum.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the Board has delegated its powers in con-
nection with this case to a three-member panel 1 [Members Rodgers,
Bean, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed.2 The Board has considered the Inter-
The Respondent 's request for oral argument before the Board is hereby denied as the
record and exceptions and memorandum adequately present the issues and positions of
the parties.
2 The Respondent contends that the Board erred in its unit findings in the earlier
representation proceeding ( Case No. 2-RC-8255 ) ; and that the Trial Examiner erred
in adopting those findings and in refusing to permit the Respondent to adduce further
evidence with respect to them. More specifically, the Respondent contends , inter alia,
that the Trial Examiner erred in denying its notion, made after the close of the instant
hearing , to reopen the record to permit it to adduce "additional evidence . . . on the
question of the Extent of the Union's Organization." However , the unit issues , includ-
ing the Respondent 's contention that the Union's unit request was based on the extent
of its organization , were fully litigated and considered by the Board in the representation
proceeding . It is clear, therefore , that these issues are not properly the subject of re-
litigation in the instant complaint case. Dsquir:e, Inc . ( Coronet Industrial Films Divi-
sion ), 109 NLRB 530, enfd. 222 F. 2d 253 ( C. A. 7) ; Pittsburgh Plate Glass Co. v.
N. L. R. B ., 313 U. S. 146 ; N. L. R. B. v. West Kentucky Coal Co ., 152 F. 2d 198
(C. A. 6), cert. denied 328 U. S. 866 ; Phillips Petroleum Co., 100 NLRB 684, 686-687,
enfd. 206 F . 2d 26 , 30 (C. A. 5) ; N. L. R. B. v. Worcester Woolen Mills Corp ., 170 F. 2d
13, 16 ( C. A. 1), cert. denied 336 U . S. 903 . Moreover, in the representation case, the
Board found that the service employees at the Hempstead branch constituted a cohesive
and permanent group of employees with common interests , and that the possibility that
the union , in the future , might seek to represent service employees in other branch
offices of the Respondent had no bearing upon the determination of the appropriate unit
at the Hempstead branch. See The Berger Brothers Company, 116 NLRB 439; Morgan-
118 NLRB No. 161.