Jonesboro Grain Drying Cooperative

National Labor Relations Board - Board Decisions

Oct 26, 1954

110 N.L.R.B. 481 (N.L.R.B. 1954)

JONESBORO GRAIN DRYING COOPERATIVE 481
ignlated collective -bargaining representative of all steward depart-
ment employees on vessels operated in the steam schooner trade by the
Member Companies of the Shipowners ' Association of the Pacific
Coast , excluding cook-stewards and other supervisors within the
meaning of the Act.]
MEMBER MURDOCK took no part in the consideration of the above
Second Supplemental Decision and Certification of Representatives.
JONESBORO GRAIN DRYING COOPERATIVE and INTERNATIONAL UNION
OF UNITED BREWERY, FLOUR, CEREAL, SOFT DRINK AND DISTILLERY
`YORKERS OF AMERICA, CIO, PETITIONER. Case No . 32-RC-693.
October 206, 19,541
Decision and Order
Upon it petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Vivan E. Burks, 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 :
The Employer, Jonesboro Grain Drying Cooperative,' is a non-
profit farmers' cooperative formed for the purpose of making sav-
ings on the services of drying rice, and composed of 90 members who
are rice farmers located in and around Jonesboro, Arkansas. It op
erates a dryer which functions only as a dryer and Storer of rice. Con-
nected by a spout to the Employer's dryer is a mill owned and oper-
ated independently by Arkansas Rice Growers Cooperative Associa-
tion,3 an enterprise concededly engaged in interstate commerce.' All
of the rice handled by Jonesboro is sold by the rice farmers directly
' As the record and briefs adequately piesent the issues and positions of the parties,
the requests for oral argument filed by the Employer and the Petitioner are hereby denied
2 Hereinafter referred to as Jonesboro
3 Hereinafter referred to as Association Although , of necessity , all 90 farmer-members
of Jonesboro are also members of the Association , and it appears that there is a certain
overlapping of the board of directors and managerial personnel between Jonesboro and the
Association , no contention is made that the two are not separate employers Even if such
were the case , the relationship is siiinlai to that involved in Producers Rice Mill , Inc, 106
NLRB 119 , wherein the issue was raised and the Board found the two enterprises to consti-
tute separate employers.
* The Association is a cooperative composed of approximately 3,200 member -farmers,
including the 90 members of Jonesboro , and is engaged in milling and marketing for mtei-
state commerce the rice grown by its members. As noted herein , however , although the
member -farmers of the Association deliver their rice to various drying cooperatives located
in 11 areas throughout the State for drying purposes , later to be redelivered by the drying
cooperatives to the Association, the rice at the time of delivery to the drying cooperatives
is sold to the Association by the mein bei -farmers, and the ownership is then vested in the
Association which is charged with the iesponsibility of selling that rice for the member's
account.
110 NLRB No. 67.
338207-55-vol 110-32
482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the Association, 75 percent of which is then sold in interstate com-
merce. Each farmer delivers his rice to the Employer's dryer where
it is dried and graded. It is then stored, either by the Employer in
the dryer's storage facilities or by the Association's storage facilities
in the latter's mill. At the time the rice is delivered to the Employer's
dryer, legal title is vested in the Association for the purpose of bor-
rowing operating capital with which to advance to the farmer 75
percent of the current market value per bushel. At no time does legal
title vest in the Employer. If, on occasion, the Employer stores the
rice for the Association, it charges the latter for such storage. The
Employer charges the farmer 12.5 cents per bushel for drying serv=
ices, such amount being deducted by the Association from the 75 per-
cent of the market value which is advanced to him. Record testi-
mony reveals that the Employer's annual gross income from its serv-
ices for drying and storing rice approximates $75,000 to $90,000.
The Employer, in effect, contends that inasmuch as it neither buys
nor sells rice and functions only for the purpose of performing dry-
ing services for its member-farmers, its operations are essentially
local and that it would not effectuate the purposes of the Act for the
Board to assert jurisdiction. Although the Employer admits that
legal title to the rice passes from the farmer to the Association for
borrowing purposes upon delivery to the Employer's dryer, it con-
tends that the equitable title remains in the farmer, and, therefore,
the services rendered by the Employer are performed for the individ-
ual member-farmer rather than for the Association. The Petitioner
contends, however, that regardless of title, the drying services are per-
formed for the Association. Were the Board to find merit in the Peti-
tioner's contention, it would normally assert jurisdiction on the basis
of the Hollow Tree 5 formula. For reasons noted hereinafter, how-
ever, we deem it unnecessary to our finding in this case to pass upon
this issue, even if we were to assume, arguendo, that the Petitioner's
contention is correct.
It has been the consistent position of the Board that it better effec-
tuates the purposes of the Act, and promotes the prompt handling
of major cases, not to exercise its jurisdiction to the fullest extent pos-
sible 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 inter-
state commerce. In furtherance of that policy, the Board in October
1950 adopted certain standards to govern its assertion of jurisdic-
tion. Those standards resulted from a study of the Board's experi-
ence up to that date.
5 Hollow Tree Lumber Company, 91 NLRB 635. 1
JONESBORO GRAIN DRYING COOPERATIVE 483
Among the standards adopted in 1950 were those set forth in the
Stanislaus,s Hollow Tree,' Dorn's,8 Federal Diary,9 Borden,1° and
Rutledge 11 cases. Pursuant to those standards, the Board limited the
exercise of its jurisdiction, respectively, to: (1) An employer which
produces or handles goods destined for out-of-State shipment, or per-
forming services outside the State in which the firm is located, valued
at $25,000 or more; (2) an employer which furnishes goods or services
necessary to the operations of other employers engaged in commerce,
without regard to other factors, where such goods or services are
valued at $50,000 per annum or more, and are sold to public utilities
or transit systems, instrumentalities and channels of commerce, and
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 annum or more; (3) an employer which has an
indirect inflow of $1,000,000 annually; (4) an employer which has a
direct inflow of $500,000 annually; (5) an employer which has such a
combination of inflow or outflow of goods or services, coming within
various categories of the Board's jurisdictional plan, that the percent-
ages of each of the categories in which there is activity taken together
add up to 100 percent; and (6) local establishments that operate as
integral parts of a national or multistate enterprise, irrespective of
the size of the enterprise or the local establishment involved or the
possible effect upon interstate 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 condi-
tions. Based upon that study and the reappraisal, it is our opinion
that the jurisdictional standards established in 1950 should be revised
in order better to attain the Board's long-established policy of limiting
the exercise of its jurisdiction to enterprises whose operations have,
or at which labor disputes would have, a pronounced impact upon the
flow of interstate commerce.
Accordingly, we have determined that in future cases the Board will
assert jurisdiction over enterprises which annually meet one or more of
the following standards :
(1) Direct inflow standard : An enterprise which receives goods or
materials from out of State, valued at $500,000 or more.12
(2) Direct outflow standard: An enterprise which produces or han-
dles goods and ships such goods out of State, or performs services
9 Stanulaus Implement and Hardware Company, Ltimtited , 91 NLRB 618.
7 Hollow Tree Lumber Company, supra.
$ Dorn's House of Miracles , Inc., 91 NLRB 632.
e Federal Dairy Co , Inc., 91 NLRB 638
IU The Borden Company, Southern Division, 91 NLRB 628.
u The Rutledge Paper Products , Inc, 91 NLRB 625.
12 For modification of the inflow standard established in Dorn's House of Miracles, Inc.,
supra, see Hogue & Knott Supermarkets, 110 NLRB 543.
484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
outside the State in which the enterprise is located, valued at $50,000
or more.13
(3) Indirect inflow standard: An enterprise which receives goods
or materials from other enterprises in the same State which those other
enterprises received from out of State, valued at $1,000,000 or morel'
(4) Indirect outflow standard: An enterprise which furnishes
goods or services to other enterprises coming within subparagraph (2)
above, or to public utilities or transit systems, or instrumentalities or
channels of commerce and their essential links, which meet the juris-
dictional standards established for such enterprises; and (a) such
goods or services are directly utilized in the products, services, or
processes of such enterprises and are valued at $100,000 or more ; or
(b) such goods or services, regardless of their use, are valued at
$200,000 or more.15
(5) Multistate standard: An establishment other than retail 16
which is operated as an integral part of a multistate enterprise, and
(a) the particular establishment involved meets any of the foregoing
standards; (b) the direct outflow of the entire enterprise amounts to
$250,000 or more; or (c) the indirect outflow of the entire enterprise
amounts to $1,000,000 or more.13
We have further determined that unless an employer's volume of
operations meets one of the Board's new independent jurisdictional
standards, we will not accumulate those standards in order to assert
jurisdiction .18
Because it appears from record testimony that the Employer's
operations do not meet any of these standards we find that it will not
effectuate the purposes of the Act to assert jurisdiction over the Em-
ployer in this case, and shall dismiss the instant petition.
[The Board dismissed the petition.]
MEMBER PETERSON, concurring :
I agree with the majority of my colleagues that jurisdiction should
not be asserted over the Employer in this case and that the instant
petition should be dismissed. However, as the majority is utilizing
13 To the extent that Staavislaus Implement and Hardware Company , Limited, sups a,
and cases relying thereon , are inconsistent with our decision here, those cases are over-
ruled.
14 For modification of the inflow standard established in Federal Dairy Co., Inc , supra,
see Hogue & Knott Supermarkets, supra
11 To the extent that Hollow Tree Lumber Company, supra, and cases relying thereon
are inconsistent with our decision here, those cases are overruled.
10 Cf. Hogue & Knott Supermarkets , supra , for standards applicable to multistate retail
establishments
17 To the extent that Borden Company, Southern Dsvision, .s upra, and cases relying
thereon are inconsistent with our decision here , those cases are overruled.
18 To the extent that The Rutledge Paper Prod-acts , Inc, supra, and cases relying thereon
are inconsistent with our decision here , those cases are overruled See, also, the ma-
jority decision in Breeding Tran.sfer Company, 110 NLRB No 64
JONESBORO GRAIN DRYING COOPERATIVE 485
the present case as a convenient vehicle for setting forth some of its
new jurisdictional standards-most of which appear not to be related
-to the specific issue involved-I propose to indicate here the extent
to which I agree or disagree with the use of these particular yardsticks.
The majority's direct and indirect inflow standards apparently re-
main the same as they were under the Board's 1950 jurisdictional
plan," except that solely for retail establishments the minimum dollar
requirements of each of the standards are doubled.20 I concur in the
continued use of the direct and indirect inflow standards of the 1950
plan and the requisite dollar minima contained therein, but as I have
stated elsewhere,21 I fail to perceive the reason or logic in the major-
ity's special treatment of retail enterprises and therefore would not
adopt these monetary changes which they have made.
According to the majority's direct outflow standard, jurisdiction
will be asserted over an enterprise which produces or handles goods
and ships such goods out of State, or performs services outside the
State in which the enterprise is located, valued at $50,000 or more.
This standard differs from that of the 1950 plan 22 in that the goods
or services must be valued at $50,000 or more, rather than $25,000.
As I stated, and for the reasons given, in my separate opinion in the
Breeding case,23 1 agree with this change in the total dollar volume
figure made by the majority. The standard also differs from that
of the 1950 plan and from the majority's press release of July 1, 1954,
in that the language "ships such goods out of State" replaces the
language "destined for out-of-State shipment." However, as this
new language merely states explicitly what has become the Board's
interpretation of the old language as a result of the decision in the
McC'orrrbac1k case,24 I have no difficulty in accepting this revision.
Applying the standard to the instant case, it is clear that the Employer
does not ship goods which it handles out of State-this is done by the
independent Association-nor does the Employer perform services
outside the State. Therefore, there is no basis under this standard
for asserting jurisdiction over the Employer.
The majority's indirect outflow standard represents changes from
the 1950 plan 25 in both monetary and substantive requirements. Thus,
the majority states that henceforth either (a) the goods or services
must be directly utilized in the products, services, or processes of the
interstate enterprise and must be valued at $100,000 or more or (b)
19Dorn's House of Miracles, Inc., footnote 8, supra; Federal Dairy Co., Inc., footnote 9,
supra
20 Hogue & Knott Supermarkets , footnote 12, supra.
n See my separate opinion in Breeding Transfer Company, 110 NLRB 493, see also
my concurring opinion in Wilson- Oldsmobile, 110 NLRB 534
22 Stanislaw Implement and Hardware Company, Limited, footnote 6, supra.
23 Breeding Transfer Company, footnote 21, supra.
24 Thomas Bulen McCormack , d/b/a John McCormack Co and C. N. Hill, 107 NLRB 606.
21 Hollow Tree Lumber Company, footnote 5, supra
486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the goods or services, regardless of their use, must be valued at $200,000
or more. As I indicated in my separate opinion in Breeding, I do
not favor any change in the substantive requirements and would ad-
here to the 1950 standard in this respect, to wit, that the materials
or services furnished merely be necessary to the operation of the
interstate enterprise. In view of my rejection of the substantive
requirements in part (a) of the majority's new standard, it follows
that I likewise find the change in part (b) unacceptable. However,
as I stated in Breeding, I do agree with my majority colleagues to the
extent that they would raise the minimum total dollar volume of busi-
ness figure for this standard from $50,000 to $100,000.
In passing, I note that the substantive requirements set forth by
the majority here differ considerably from those which it announced
in its press release of July 1, 1954. In the press release it was stated
that the goods themselves ultimately would have to go outside the
State and the services would have to become part of the stream of
interstate commerce. In my separate opinion in Breeding, when the
only details as to the new standards which were available to anyone
other than members of the majority were contained in the press re-
lease, I asserted that I could find no persuasive reason for this change
in substantive requirements. As these requirements have now been
discarded, apparently my majority colleagues likewise were unable
to find a valid reason for the change. However, the unexplained sub-
stitution of the more vague new requirements announced for the first
time in this case appear to me to be equally as arbitrary. I would be
less than candid if I did not admit that the rather obscure language
which my majority colleagues have chosen here to describe their new
standard-that the goods or services must be directly "utilized in" the
products, services, or processes of the interstate enterprise-makes it
difficult for me to ascertain what they have in mind. However, I find
it is unnecessary to attempt to plumb or fathom the basis for their
action because I consider it a reasonable conclusion that, as their
overall aim is to restrict the Board's jurisdictional area, the new stand-
ard is designed to aid in the achievement of this objective.
Although the Employer's services in this case were necessary to the
operation of the interstate enterprise-the Association-and there-
fore satisfy the substantive requirement of the old plan, I would not
assert jurisdiction because the Employer's business does not meet the
$100,000 figure which I would now require under this standard.
In my separate opinion in Breeding, I pointed out that under the
1950 plan the Board took jurisdiction of establishments which, al-
though local in character, operate as integral parts of a multistate
enterprise without regard to the total volume of business of the par-
ticular establishments or the entire enterprise involved.26 The princi-
2e The Borden Compamy, Southern D2vistom, footnote 10, supra.
JONESBORO GRAIN DRYING COOPERATIVE 487
pal feature of the majority's new multistate standard is the imposi-
tion of minimum total dollar volume of business requirements. I
stated in Breeding, and I repeat here, that I would adhere to the,
standard of the 1950 plan with respect to multistate enterprises. In
my opinion, it is clear that by its very nature the impact upon com-
merce of an establishment which is truly an integral part of a multi-
state enterprise is so pronounced regardless of the dollar volume fig-
ures involved that the Board should assert jurisdiction on that basis
alone.
Finally, the majority is now abolishing the so-called "combination
category," of the 1950 plan,27 that is, jurisdiction will no longer be
determined by combining the percentages which a company has in each
of the dollar volume categories . As I stated in my Breeding opinion,
I agree to the abandonment of this standard because, while I believe
it is logically defensible, it has had the effect of an irritant scarcely
worth the price 28
MEMBER MURDOCIK, dissenting :
This is another in the series of cases announcing in decisional form,
for the first time the new and severe restrictions upon the assertion
of Board jurisdiction first announced in press releases on July 1 and
15. In my dissenting opinion in Breeding Transfer Company, supra,.
I set forth in detail my basic objections to the entire body of these new
standards as conflicting with the Act and the Board's legal responsi-
bilities thereunder; as involving the exercise of legislative power to,
reallocate authority between the Federal and State Governments; and
as absent any justification based upon compelling budgetary or ad-
ministrative necessity-objections which apply in full to the particu-
lar standards involved herein.
I note at the outset that this is a somewhat unusual lead case under
the new standards. It is not confined to the normal role of a lead case
in announcing in decisional form and explicating the new jurisdic-
tional standard which is involved in the case.29 Instead, it has been
converted into a receptacle into which has been dumped 6 separate ju-
risdictional standards, at least 4 of which have absolutely nothing to do,
with this case. Inasmuch as there is no explication of the latter, their
inclusion in this decision would seem to serve no purpose beyond which
the press releases have already served, except to the extent that they
may be amendatory of the press releases. I see no reason to prolong
27 The Rutledge Paper Products, Inc , footnote 11, supra.
28 In any event this standard accounted for a small handful of cases Our staff study
shows that of the 413 cases pending before the Board on May 1, 1954, only 3 involved the
combination theory of jurisdiction. Of these 3, cull 1 would be dismissed because of the
abandonment of that standard ; obviously , this indicates a de minimis curtailment of
Board jurisdiction.
28 In the press releases it was stated that "The changes indicated were made by ma-
jority vote in specific cases ." [ Emphasis supplied.]
488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this dissent to discuss what amounts to dicta by the majority as to
what standards they will follow in wholly unrelated cases. Accord-
ingly, I shall limit this opinion to it discussion of the implications
and faults implicit in the revised "direct outflow" and "indirect out-
flow" standards actually involved herein, under which the majority
refuses to assert jurisdiction over this Employer. My dissenting views
on the "multistate," Rutledge "combination" formula,30 and retail en-
terprise standards will be set forth in other cases which directly con-
cern their application.
In the instant decision, the Board majority announces and puts into
effect changes in the direct and indirect outflow standards previously
in effect and known as the Stanislaus and Hollow Tree standards from
the lead cases which announced them under the 1950 plan. These
changes amount to a doubling or more of the dollar volume required
for assertion of jurisdiction under both standards and the addition
of a number of other restrictive qualifications. Thus out-of-State
sales or services of $50,000 or more are now required under the former,
while sales or services to interstate firms over whom the Board would
assert jurisdicton, of either $100,000 or $200,000 are now required
under the latter, depending upon the use of such products or services.
The Board majority having made such drastic revisions of these two
standards, we may well ask, "Why?"
The fact of the matter is that the majority has failed here, as in
the press releases, to set forth any indication of why these new stand-
ards are either necessary or proper. We have only the cryptic state-
ment that these severe restrictions are based upon a study and
reappraisal of the 1950 jurisdictional plan and that dismissal of peti-
tions thereunder will effectuate the purposes of the Act. What that
study and reappraisal were; what specific factual or legal findings
were made thereunder; what particular "purposes" of the Act will be
effectuated by this broad slash in our operations is largely left to the
imagination. A passing reference to enterprises having a "pro-
nounced" impact upon the flow of interstate commerce, standing alone,
is hardly adequate to explain why it is suddenly necessary, without
benefit of legislation, to exclude what may well amount to one-third
of those enterprises previously under the restraints and protections
of the Act. Particularly when, for the past 19 years, the very enter-
prises now excluded by the majority have been consistently found by
the Board and the courts to involve economic activity in which labor
disputes would indeed have a substantial impact upon the free flow
of commerce.
The majority opinion makes reference to the "light of changing
economic conditions." Precisely what is meant by this statement is
30 The Putled©e Paper Products, Inc , footnote 11, supra
JONESBORO GRAIN DRYING COOPERATIVE 489
difficult to determine. Apparently my colleagues are implying, with-
out directly stating, that the trend of prices in the past 4 years requires
the 1950 dollar minimum requirements to be increased and to the extent
done herein. The basis for such an assertion is, again, left undisclosed.
However, an examination of the consumer price indices published by
the Bureau of Labor Statistics discloses that the cost of living has in-
creased approximately 10 percent since the 1950 jurisdiction plan was
placed in effect. Accordingly, if the Board's jurisdictional figures
were to be adjusted in conformance with this increase, the direct and
indirect outflow figures would be increased $2,500 and $5,000 respec-
tively. Yet my colleagues have increased those figures $25,000 in the
first case and up to $150,000 in the second instance, or an increase of
from 100 to 300 percent. At the very least this is faulty arithmetic on
the part of the majority. More probably, it is simply a clear indica-
tion that any change in economic conditions which has occurred in this
Nation in the past 4 years has had nothing to do with the creation of the
current revisions. Moreover, a relatively small change in price levels
which might bring a few- more cases to the Board under the 1950 stand-
ards does not necessarily require any change in the standards. If the
Board is able to handle its existing case load, as it is, there is no reason
to change those standards. As I pointed out in my Breeding Transfer
opinion, financial or personnel considerations do not require a slash in
our jurisdiction.
The majority, however, is not content with merely this great increase
in the dollar minimum requirements. Whereas the 1950 standards
would assert jurisdiction over employers "engaged in producing or han-
dling goods destined for out of state shipment valued at $25,000 per
annum," the majority has not only doubled the minimum but has lim-
ited the coverage of this standard as stated in this decision to those
firms "which produce or handle goods and ship such goods out of
state." The addition of a requirement that the employer actually ship
the goods concerned has been made sometime in the period since the
issuance of the press releases for both of them merely repeat the lan-
guage of the 1950 standard in this respect. The effect of such a change
in the standard apparently will be to require those employers who han-
dle or produce goods destined for interstate commerce but who do not
possess title to the goods when they are shipped to have operations of
at least $100,000 before we will assert jurisdiction. Yet the majority
decision, as in other instances, contains no indication of why such a
distinction is either necessary or is in accord with the effect of those
operations upon commerce; nor is there any specific statement that the
press releases have been amended in this respect.
But the confusion compounded by the majority does not cease there.
In setting forth the bare bones of the $100,000 standard, both the press
490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
releases and the majority decision here speak in terms of enterprises
"furnishing" and "supplying" goods and services rather than "sell-
ing." Yet in the recent Brooks Wood Products case,31 the Board, over
my dissent, held that the goods must actually be sold by the employer
-to an interstate enterprise. There, the fact that the employer directly
delivered goods to an interstate enterprise was held to be insufficient
-grounds for asserting jurisdiction because the title in the sale first
passed through the hands of a third party. The Brooks decision is-
sued before the press releases and the instant decision, yet neither ap-
pears either to overrule it or accept it, and there is no way for the pub-
lic, let alone Board personnel, to know whether or not the language
.of the instant decision qualifies the Brooks case or the reverse.
Furthermore, the majority have added the entirely new require-
ment that if the goods or services are not "directly utilized" the dollar
minimum becomes $200,000 instead of $100,000. And if the enterprise
furnishing the services is a multistate chain, an additional test of
$1,000,000 for the entire chain is brought into possible play. If the
reader finds this complex and confusing, he is not alone. Repeated
reading, study, and checking of the July 1 and 15 press releases and
-the instant majority decision fail to resolve the many questions which
are inherent in these new restrictions. The press releases and the
-instant majority opinion are in conflict, for one thing, as to whether
,or not the multistate test of $1,000,000 is to be used only if services
are concerned or whether it also covers a multistate enterprise fur-
nishing materials. Is that test to be effective only when the services
and/or goods are not "directly utilized" or also when they are "directly
,utilized"? And, above all, what is meant by the novel and undefined
-term "directly utilized"? Is the rice drying performed by the Em-
ployer herein a case of "direct utilization"? The majority ostensibly
uses this case to explicate the new rule and then does not bother to do
so. (In fact, it does not even specify which standard is the basis for
the dismissal of this petition.) Is furnishing fuel to heat a plant
building "direct utilization"? Bookkeeping and accounting services?
Construction of a plant building? Delivery and setting up of heavy
machinery? If not, why not?
Furthermore, I question as to what the grounds or findings are on
which the majority now bases the premise at the heart of this distinc-
tion between goods and services "directly utilized" and "not directly
utilized." What evidence does the majority have that a labor dispute
affecting the supply of the latter materials or services would not have
an appreciable impact upon commerce? The experience of this Board
has certainly not given rise to such a premise and the majority cites
none. In fact, as the Supreme Court, with whose findings on such ex-
31107 NLRB 237.
JONESBORO GRAIN DRYING COOPERATIVE 491
perience the majority seem to be in consistent disagreement, has
-stated : 33
The Congressional authority to protect interstate commerce from
burdens and obstructions is not limited to transactions which can
be deemed to be an essential part of a "flow" of interstate or
foreign commerce. Burdens and obstructions may be due to
injurious action springing from other sources. [Emphasis
supplied.]
For almost two decades this agency has proceeded upon that premise,
.as stated by the Court. I do not think we can discard that conclusion
,of years' experience and adopt its opposite on a showing restricted to
the introduction of a new phrase-"directly utilized."
The majority opinion here is also interesting, if hardly informative,
with respect to another major element of these new restrictions. In
-the press release of July 1, the majority announced that it had estab-
lished a new requirement that "the goods supplied by firms" under this
category must "ultimately go outside the state" and that any services
supplied "be part of the stream of interstate commerce" if the $100,000
minimum was to obtain. The press release of July 15 reiterated this
.requirement and specifically stated that "jurisdiction will not be exer-
cised over enterprise supplying materials to other firms which do inter-
state business unless the materials themselves go outside the state."
Under this latter announcement even the $200,000 standard would not
:apply if the materials furnished did not go outside the State. Yet the
instant decision neither affirms nor denies these rules. Has the ma-
jority dropped such requirments? If so, the public, which was in-
formed of these rules even before any decisions containing them could
issue, should certainly be specifically told so to avoid confusion which
-will arise from continued reliance upon the July 1 and 15 press releases.
There is a broader aspect of the new standards involved in this
case which should also be taken into consideration. As I noted in
my Breeding Transfer opinion, with respect to the overall effect of
the new standards, these new and substantial restrictions upon the
exercise of our jurisdiction encompass a large number of the Nation's
smaller plants and businesses along with many not so small. The size
of such enterprises, as I have shown there, is no indication of what
would be the impact upon commerce of labor disputes affecting
their operations. But their size is important for another, vital rea-
son. The Board is well aware of the fact that, while the industrial
giants in the Nation's major industries now have a high incidence
of employee self-organization and a history of stable collective bar-
12 N. L R. B . v Jones & Laughlin Steel Corporation, 301 U. S 1, at 36
492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gaining, the organization of unions and the progress of collective,
bargaining has not kept pace in the smaller industrial and business,
units. Quite naturally , these unorganized areas are now receiving a
major share of the organizational efforts of employee groups. The
experience of this agency has established beyond question the fact
that it is during these organizational efforts, the struggles for recog-
nition and attempts to achieve collective bargaining that the repre-
sentation and unfair labor practice procedures of the Board and the,
protections and restraints of the Act are most necessary . Yet it is
here, in the present area of greatest labor-management tension,
where the majority would withdraw our facilities from use by em-
ployees and employers. I can only conclude that this action of the
majority, far from effectuating the policies of the Act, acts as a bar-
rier to the performance of our statutory duty.
The facts of the instant case illustrate the extent to which the re-
vised standards here involved will imperil and obstruct the protec-
tion of the free flow of commerce from the impact of labor disputes.
In the past year, this Employer received over $75,000 for its services
in drying rice. The majority opinion looks this far, consults its
statistics , and denies jurisdiction . I may be forgiven, I hope, if I
probe a bit deeper into the impact of this Employer 's operations on
interstate commerce. The $75,000 which the Employer received was
its payment for drying some 646,000 bushels of rice. This rice was
valued at approximately $1,453,500; and of the total processed by
the Employer, approximately 75 percent, or over $1,000,000 was
thereafter shipped in interstate commerce by the Association. A
labor dispute halting the processing of rice by the Employer would
not alone affect the $75,000 which that enterprise received as pay-
ment for its services . On the contrary and much more important,
it is evident that such a work stoppage could prevent the shipment
of as much as $1,000,000 in rice in interstate commerce. The ma-
jority apparently views this sum as being insignificant . In fact,
for jurisdiction to be asserted under the new standards now an-
nounced herein , the Employer would have to process one-fourth again
as much rice or, in the event the majority does not deem this service
to be "directly utilized," the Employer would have to process grain
destined for interstate shipment valued at more than $2,300,000. I
cannot agree that such a standard in any way adequately protects
the free flow of commerce.
Accordingly, because the standards utilized herein are not only
subject to the objections which I noted in the Breeding Transfer case,
but are both unclear and unsupportable in fact, I must dissent from
the establishment of those standards and the rejection of jurisdiction
herein.