Highway Services, Inc.

National Labor Relations Board - Board Decisions

Oct 26, 1954

110 N.L.R.B. 554 (N.L.R.B. 1954)

554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the term "primarily" is only one of the many areas of uncertainty in
the meaning of the new standards.) That would mean that if a bank
built a 6-story building, occupying 3 (plus a tiny fraction) floors it-
self, the Board would take jurisdiction because of the impact of a cessa-
tion of building services on the bank's own commerce. But if the bank
added 1 more floor leased to a general tenant-or 17 more floors, all
leased to tenants engaged in interstate commerce, the Board would re-
fuse to assert jurisdiction under its rule. How does the increase in the
number of floors and tenants whose commerce would be affected by a
cessation of building services, negate the effect of the cessation on the
bank's own commerce so as to justify the Board in their ignoring the
effect on the bank's own commerce and refusing to take jurisdiction
which it would have taken absent the additional floors and tenants?
How does greater effect on interstate commerce lead to less assertion
of jurisdiction? Accordingly, I must strongly dissent from the re-
fusal to assert jurisdiction in this case or over office buildings hous-
ing and servicing tenants engaged in interstate commerce, and from
the promulgation of a standard governing this area which is
intrinsically illogical.
MEMBER PETERSON, dissenting :
I am in substantial agreement with Member Murdock in dissenting
both from the refusal to permit withdrawal of the petition and from
the policy declaration to confine our assertion of jurisdiction over
office buildings to those structures where the particular "employer
which owns or leases and which operates the office building is itself
otherwise engaged in interstate commerce and also utilizes the build-
ing primarily to house its own offices."
I have endeavored to explicate my basic approach to the difficult
problem of determining where to draw the jurisdictional line, in the
exercise of a power which to me is plainly within our discretion, in my
separate opinion in the Breeding Transfer case, 110 NLRB 493.
That underlying philosophy will not, therefore, be repeated here.
Suffice it for me to say that in applying the criteria there set out, I
cannot bring myself to join my colleagues in the majority in declining
to assert jurisdiction here. I therefore dissent.
HIGHWAY SERVICES, INC. AND CONTINENTAL PACIFIC LINES and
TEAMSTERS , AUTO TRUCh DRIVERS AND HELPERS, LOCAL No. 57, AFL,
PETITIONER . Case. No. 36-RC-1016. 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 Robert J. Wiener, hearing
110 NLRB No. 66.
HIGHWAY SERVICES, INC. 555
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 that it will not
effectuate the purposes of the Act to assert jurisdiction in this case
for the reasons stated below.'
The Petitioner herein seeks a unit of four driver employees em-
ployed by Highway Services, Inc., in its Oregon operations, where it is
engaged in the hauling of United States mail and the driving of a
highway post office between Eugene and Myrtle Point, Oregon. It
operates exclusively under 2 contracts with the United States Post
Office and, for services rendered pursuant thereto, receives $59,093
annually.
In view of the Breeding Transfer case 2 defining the conditions
under which we would assert jurisdiction over operations of this na-
ture, we find that Highway's limited operations do not have a sufficient
impact upon interstate commerce to warrant the Board in asserting
jurisdiction herein. 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, and we shall dismiss the petition.
[The Board dismissed the petition.]
MEMBER PETERSON, concurring :
This case involves an intrastate trucking firm which is a link in the
chain of interstate commerce. In the Breeding case,-' the same Board
members who compose the present majority announced that they will
assert jurisdiction over such a firm only if it does at least $100,000
worth of business annually for interstate concerns. I stated in my
separate opinion in Breeding that I agreed to the establishment of a
minimum monetary figure for local trucking companies because they
properly should not be considered to be essential links in interstate
commerce without regard to the amount of business they do. How-
ever, I would set the amount at $50,000.
The facts here are that the Employer operates exclusively (at the
date of the hearing) under 2 contracts with the United States Post
Office and, for services so rendered, receives $59,093 annually. As this
figure is considerably below the minimum amount of $100,000 now re-
quired by the majority, it dismisses the petition. A superficial glance
at the amount of business done by the Employer would lead to the con-
elusion that it meets my minimum figure of $50,000. However, the rec-
1 As we are dismissing the instant petition on jurisdictional grounds, we deem it
unnecessaiy to pass upon the Employee 's motion to strike Continental Pacific Lines as a
party to the proceeding
2 Breeding Transfer Company , 110 NLRB 493
3 Breeding Transfer Company , footnote 2, supra.
556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ord clearly discloses that it now does not. The Employer's total in-
come of $59,093 was received from 2 contracts: a bulk mail contract.
valued at $31,098 with an expiration date of June 30,1954, and a high-
way post office contract valued at $27,995 a year with a termination
date of June 30, 1957. At the hearing held on March 24, 1954, the-
Employer's representative testified that it was not going to seek re-
newal of its bulk mail contract. In these circumstances, the latter-
contract now having expired, I find the Employer's income does not
reach my minimum monetary figure and I therefore concur in the-
majority's action dismissing the petition.
MEMBER MURDOCK, dissenting :
In my dissenting opinion in the Breeding Transfer case,' I set forth.
in detail my basic objections to the new jurisdictional standards as-
conflicting with the Act and the Board's legal responsibilities there-
under, involving the exercise of legislative power to reallocate au-
thority between the Federal Government and the States, and without
justification in budgetary or other administrative necessities. Among
those new restrictions is the requirement that transit firms which are-
links in the chain of interstate commerce must have more than $100,000,
gross annual income from interstate operations before the Board will
assert jurisdiction. In the Breeding Transfer case, I further pointed
out, in detail, how such a restriction does not satisfy the requirements
of the Act that this Agency protect commerce from unfair labor prac-
tices which affect it; how this new rule is in direct conflict with the-
past findings of the Board and the courts that unfair labor practices,
among such firms, regardless of their gross income, have a substantial
impact upon commerce; and how this action is unsupported by any
consideration of proper administration or policy.
The instant majority decision not only points up the correctness of
the conclusions which I drew in Breeding Transfer; it applies the new
standard announced in that case to a set of facts which I do not believe
should fall within that rule. This Employer is engaged in the hauling
of United States mail and the driving of a highway post office between
two cities in the State of Oregon. Its operations are performed under
exclusive contract with the United States Post Office. Although the
majority seemingly do not contest the fact that these operations "af-
fect commerce" as defined in the statute, they, nevertheless, decline to
assert jurisdiction over the Employer. We are given no rationale for
that action other than a cryptic reference to the Breeding decision and
the flat comment that this Employer's "limited operations do not have
sufficient impact on interstate commerce" to warrant assertion of
jurisdiction. I must emphatically reject this conclusion.
4 Breeding Transfer Company, footnote 2, supra.
HIGHWAY SERVICES, INC. 557
As has been noted, the Employer's operations consist of the trans-
portation of the United States mail. I would not have thought that
the Board would ever view such activity as insufficient to require as-
-sertion of jurisdiction. The intimate connection between the trans-
portation of the mails and the flow of interstate commerce has always
been assumed, and rightly so. The importance of industrial peace
in assuring unimpeded transportation of the mail has also been con-
sistently and historically recognized. Indeed, Federal intervention
in the Pullman strike of 1894, was based upon the protection of the
unimpeded passage of mail in interstate commerce.5 And, since its
earliest days, this Board has consistently regarded transportation of
mail, even though restricted to intracity areas , as a vital segment of
interstate commerce necessarily requiring the application of the pro-
tections and restraints of the Acts In this position, we have uni-
formly been sustained by the courts.'
The majority opinion contains neither reference to this historic
practice nor any findings or data which would provide a basis for over-
ruling it. It implicitly assumes that there is no difference in trans-
porting private goods and United States mail, or any reason why
standards applicable to the former should not govern the latter. In
the instant case it is obvious that unfair labor practices committed by
or among the Employer's employees would inevitably affect the transit
of mail and the free flow of commerce. I cannot assume, nor can this
Board, I believe, that the citizens of the locality served by this Em-
ployer in Oregon write only to each other or to other Oregon addresses
and similarly receive only such mail; that they do not transact busi-
ness by mail which, in the aggregate, does not far outvalue the bare
cost of the Employer's services to the Government; or that their postal
communications do not affect interstate commerce or become, in any
way, a part of interstate commerce. In short, I cannot assume that
the uninterrupted transportation of mail by this Employer is not
an activity which substantially "affects commerce" as defined- in the
statute and which is therefore not entitled to the protections and re-
straints of the Act. On the contrary, it is clear that the Employer's
operations, by virtue of their vital role in the shipment of mail, do
substantially affect commerce. Further, it is equally clear that to
attempt to measure the impact of such activity upon commerce by the
gauge of the Employer's receipts is both futile and misleading. It
seems to me that this Board as a Federal agency has a special obliga-
tion in the case of United States mails to apply the protection of this
Act to insure against industrial disputes which might disrupt their
8 For a general discussion of the basis for Federal intervention , see The Pullman Strike,
Almont Lindsey, U. of Chi. Press (1942) Chap. VIII.
e See E C. Wtilltams, 88 NLRB 620, and cases cited therein.
See N L. R B v. William H. Carroll, 120 F. 2d 457 ( C. A. 1) ; see also , Joseph R.
Gregory, 31 NLRB 71, enfd. December 2, 1941 (C. A. 5) (unreported).
558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
free flow, whatever the amount involved. In effect, the majority say
that because this Employer receives less than $100,000 for hauling
United States mail (only $59,093), it is of no concern to this Board as.
a Federal agency to see that industrial disputes do not disrupt its free
flow-anything less than $100,000 is a matter of State concern.
Whatever argument may be made for this approach in matters of
private commerce, it is patently inapposite to the transportation of
United States mail. I would think that the majority's effort to divest
this Board of its jurisdiction would at least be halted short of this
point.
In view of the fact that transportation of the mails has uniformly
been regarded by the Board and the courts as activity clearly "affect-
ing commerce" within the meaning of the Act, and because the ma-
jority opinion affords no basis in fact or law for overturning this long-
standing position in favor of an inapposite "receipts" standard, I
must respectively dissent from the instant decision. I would, instead,
assert jurisdiction over this Employer and all other employers en-
gaged in the transportation of United States mail.
THE VIRGIN ISLES HOTEL, INC. and ST. THOMAS LABOR UNION-L. I. U.
1812-C. I. O. CONGRESS OF INDUSTRIAL ORGANIZATIONS, PETI-
TIONER. Case No. 24-RC-681. 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 Arthur A. Greenstein, hear-
ing 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 that the Em-
ployer operates a hotel on St. Thomas Island, Virgin Islands. Its
direct inflow of goods from outside the Islands is in excess of $100,000
annually and its indirect inflow of such goods during the same period
is in excess of $50,000. The Employer neither admits nor denies that
it is engaged in commerce.
It has been the Board's long-standing policy not to exercise jurisdic-
tion over the hotel industry. This policy was reasserted, after the
enactment of the present Act, in the White Sulphur Springs Co. case I
and the Hotel Association of St. Louis case.2 In the latter case, a ma-
jority of the Board,' in declining to assert jurisdiction said :
We do not believe that a settled policy, endorsed by all those mem-
bers of Congress who have recorded an opinion on the subject,
1 85 NLRB 1487.
2 92 NLRB 1388.
3 Members Reynolds and Murdock dissenting.
110 NLRB No. 65.