Maytag Aircraft Corp.

National Labor Relations Board - Board Decisions

Oct 26, 1954

110 N.L.R.B. 594 (N.L.R.B. 1954)

.594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act.
4. The parties agree that a unit of all regularly employed truck-
drivers, excluding production and maintenance employees, casual
employees, office clerical and professional employees, guards, the
superintendent, dispatchers, and other supervisors, is appropriate.
The parties disagree as to the inclusion of all regular part-time truck-
drivers. The Employer contends that they should be included in the
unit, whereas the Petitioner contends that they should be excluded.
At the time of the hearing, the Employer had about 35 truckdrivers,
about 15 of whom were regular part-time drivers. The use of part-
time drivers depends on the Employer's business and weather condi-
tions. They are called from a list maintained by the Employer, when
there is need for their work. They usually work 3 or 4 days a week,
and sometimes work as many hours as regular full-time truckdrivers.
They are paid the same wage rate and have the same working condi-
tions and employee benefits as do the full-time truckdrivers. In ac-
cordance with our usual practice, we shall include the regular part-
time truckdrivers in the unit.'
We find that all regular full-time and part-time truckdrivers, ex-
cluding production and maintenance employees, casual employees,
office clerical and professional employees, guards, the superintendent,
dispatchers, and other supervisors, constitute a unit appropriate for
the purposes of collective bargaining within the meaning of Section
9 (b) of the Act.
[Text of Direction of Election omitted from publication.]
'Marvel Roofng Products, Incorporated, et at., 108 NLRB 292; Hollywood Citizen
News, 108 NLRB 202; Essex-Graham Company, 107 NLRB 1491.
MAYTAG AIRCRAFT Corp. and GENERAL DRIVERS, WAREHOUSEMEN AND
HELPERS LOCAL No . 968, INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL,
PETITIONER. Case No. 39-RC-685. October 26,1954
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Louis S. Eberhardt, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer contests the Board's jurisdiction. The record
shows that the Employer is engaged in the refueling of military air-
110 NLRB No. 70.
MAYTAG AIRCRAFT CORP. 595
craft at Ellington Air Force Base, Houston, Texas, under a contract
with the Armed Services Petroleum Agency in the amount of $195,000.
In, addition, the Employer has similar contracts in comparable
amounts at other Air Force bases in Illinois, Oklahoma, Arizona, and
Colorado. At the Ellington Air Force Base, which is the only opera-
tion involved in this proceeding, the Employer's employees unload
Government-owned gasoline and oil into Government storage facilities
on the base, determine whether the fuel meets specifications as to qual-
ity and quantity, load the fuel from these storage facilities into the
Employer's trucks, haul it to the planes, and connect ground wires and
take other safety precautions preparatory to actual refueling by mili-
tary personnel.
It has been the consistent position of the Board that it better ef-
fectuates 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 dis-
putes would have, a pronounced impact upon the flow of interstate
commerce. Where, as here, the national defense is concerned, we have
stated previously 1 that "we recognize of course that Federal interven-
tion in labor disputes which have a real impact on national defense is
especially warranted, particularly in these times ... We agree .. .
that this Board should step into labor disputes which are substantial
in character, and particularly where our national welfare is involved."
In furtherance of its stated policy, the Board in October 1950
adopted certain standards to govern its assertion of jurisdiction.
Those standards resulted from a study of the Board's experience up
to that time . The yardstick, or standard, for evaluating the impact
on national defense was announced in the Westport Moving and Stor-
age Company case,' where the Board stated that it would "assert
jurisdiction over enterprises which substantially affect the national
defense." That yardstick was so broad and so vague that its applica-
tion resulted in extending the scope of the Board's operations to enter-
prises which have only an insubstantial impact on national defense.'
In the Westport case itself, the Board took jurisdiction over an em-
ployer which manufactured for the Army only $21,000 worth of boxes
for use in shipment of personal effects overseas by military personnel.
The Board has also found a cafeteria and food wagon enterprise with
less than $15,000 outflow, operated in an aircraft plant,- to have a sub-
' Taschert's Inc., 107 NLRB 779 (Member Murdock dissenting)
2 91 NLRB 902.
3 Member Murdock stated in his dissent in the Taachert case, "To my knowledge until
today [the Board] has never dismissed a national defense case by characterizing particu-
lar goods or services as insubstantial-therefore not warranting the assertion of
jurisdiction "
4 Coburn Catervng Company, 100 NLRB 1133.
596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stantial effect on national defense. The "yardstick" adopted in the
Westport case has therefore turned out to be no yardstick at all.
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 conditions.
Based upon that study and reappraisal it is our opinion that the
jurisdictional standards established by the Westport Moving and Stor-
age Company case should be revised in order to better attain the
Board's long-established policy of limiting the exercise of its juris-
diction to enterprises whose operations have, or at which labor dis-
putes would have, a pronounced impact upon the flow of interstate
commerce. Therefore we have determined that in future cases the
Board will assert jurisdiction over enterprises of this type only if they
are engaged in providing goods or services directly related to na-
tional defense pursuant to Government contracts, including subcon-
tracts, in the amount of $100,000 or more a year.'
As the Employer's Ellington Air Force Base operations meet this
new standard, we shall assert jurisdiction here.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act.
4. In accordance with the agreement of the parties, we find that
all employees of the Employer at Ellington Air Force Base, Houston,
Texas, excluding guards, watchmen, office clerical employees, and
supervisors as defined in the Act, constitute a unit appropriate for pur-
poses of collective bargaining within the meaning of Section 9 (b) of
the Act.
[Text of Direction of Election omitted from publication.]
MEMBER PETERSON, concurring :
I agree with the result reached by my colleagues in the majority in
this case, but not with the specific monetary standard they announce
for evaluating the impact of business enterprises on national defense
as a basis for exercising our jurisdiction. It seems to me that it
would be wiser to utilize a more sensitive measure when we are dealing
with activities directly affecting the national defense. I therefore,
as stated in the Breeding Transfer Company case,' would adopt
$50,000 as the minimum dollar volume figure, and if that amount of
5 To the extent that Westport Moving and Storage Company, supra, and cases relying
thereon are inconsistent with our decision herein, those cases are overruled . See, also,
the majority decision in Breeding Tiansfer Company, 110 NLRB 493
0 110 NLRB 493.
MAYTAG AIRCRAFT CORP. 597
work is done annually I would assert jurisdiction without regard to
whether it is performed pursuant to direct Government contracts.
Moreover, objective facts do not warrant their characterization of
our experience under the 1950 jurisdictional plan as providing a yard-
stick "so broad and so vague that its application resulted in extending
the scope of the Board's operations to enterprises which have only an
insubstantial impact on national defense." Our staff jurisdictional
study shows that of 413 cases pending before the Board on May 1,
1954, 19 involved the national defense concept. Of these, at least 7
appear to qualify under the majority's new standard, 1 is doubtful,
and 7 would be remanded. Four would be dismissed at the present
juncture. The 413 cases represent an 18 percent sample of the Board's
average annual output of cases, and the distribution as among the
various categories closely parallels that for previous years. In view
of these facts, the majority's characterization of our experience and
its results is plainly erroneous. Indeed, it would appear they have
demolished a straw man of their own erection.
MEMBER MURDOCK, concurring in part and dissenting in part :
While I agree that jurisdiction should be asserted over this Em-
ployer, I cannot approve, and must emphatically reject, the drastic
restrictions announced herein with respect to the standard for asser-
tion of jurisdiction over enterprises whose operations affect national
defense. Along with like restrictions, this particular curtailment was
announced by a majority of the Board in press releases dated July 1
and 15. The instant decision, like the remainder of those intended
to explicate these press releases, contains an attempted justification
consisting mainly of a cryptic reference to an asserted study and re-
appraisal of the 1950 jurisdictional standards and Board authority in
the area of jurisdiction. In my dissenting opinion in Breeding Trans-
fer Company, 110 NLRB 493, I analyzed this contention and
showed that, on the contrary, the new jurisdictional standards con-
flict with the Act and the Board's legal responsibilities thereunder,
involve the exercise of legislative power to reallocate authority be-
tween the Federal and State Governments, and lack any justification'
based upon compelling budgetary or administrative necessity. Ac-
cordingly, further attention to my basic objections to the new stand-
ards is unnecessary and I shall restrict myself herein to a discussion
of the specific background and effect of the new restrictions as they
affect enterprises whose operations affect national defense.
It is, I think, a matter of serious concern when this Agency estab-
lishes any procedures or policies which touch upon matters of na-
tional defense. A restriction upon our assertion of jurisdiction in
that area does more than touch the national security; such a restric-'
Lion, if ill advised, must necessarily expose a portion of the national
598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
defense effort to the dangers of industrial strife. As I pointed out
in my dissenting opinion in the Taichert case.7
In establishing its [1950] jurisdictional plan, the Board cre-
ated a special category for enterprises affecting the national de-
fense because it felt that in that area in particular, beyond all
others, it had a special responsibility as a Federal agency to guard
against industrial disputes which might have an adverse impact
on the defense effort . Accordingly, it set up no minimum
amounts of out-of-State inflow or outflow of goods or services as
the basis for asserting jurisdiction in this area ; assuming legal
jurisdiction, the only test was, would the enterprise substantially
affect the national defense? In answering that inquiry, ever
since the policy was first announced in the Westport case, the
Board has taken a liberal view in favor of asserting juris-
diction-practically speaking almost a de minimis test. It has
not undertaken to measure the exact degree of impact on the na-
tional defense-the indispensability of particular goods or serv-
ices. I doubt our competence to do so. To my knowledge until
today it has never dismissed a national defense case by charac-
terizing particular goods or services as insubstantial-therefore
not warranting the assertion of jurisdiction.
In essence then, under the 1950 plan the Board has consistently held,
until the past year, that the particularly vital status of enterprises
which are a part of the national defense effort made it advisable and,
indeed, necessary that we assert our full legal jurisdiction in that field.
This position was grounded on the firm belief that, even were the
Board capable of accurately asserting the amount of harm which
would be done to the defense program by a labor dispute in a particu-
lar defense enterprise-which the Board is manifestly not capable of
doing-it is still preferable not to gamble with the national security
by asserting jurisdiction over only the larger enterprises. It was and
is my view that no part, great or small, of the national defense effort
should be hampered by labor disputes if it is within the authority of
this Board to prevent it.
The majority opinion, however, erroneously views this past ap-
proach as creating a "yardstick" which is "so broad and so vague" as
to be useless. As an illustration of the "broadness" of the Westport
standard they cite a truncated version of my comments in the Taichert
case as supporting a statement that the former yardstick of the Board
"resulted in extending the scope of the Board's operations to enter-
prises which have only an insubstantial impact on national defense."
This, of course, is patently erroneous. The fact is, as I have noted
above, the Board has not considered itself equipped with the spe-
a Taichert's, Inc., 107 NLRB 779
MAYTAG AIRCRAFT CORP. 599
cialized knowledge necessary to declare any enterprise active in the
national defense field to have only an "insubstantial " role in that pro-
gram. As to the vagueness of the standard , suffice it to say that, un-
til the issuance of majority decisions in the . past year, there has not,
to my knowledge, been any appreciable confusion or doubt as to the
'extent of the Board 's assertion of jurisdiction in this area . In.any
event, I think it clear that the mechanics of such a standard are sub-
sidiary to the question of whether we fully protect this important seg-
ment of the Nation's economy.
For the past year, however, the Westport standard has been con-
sistently breached. Without apparent pattern or standards, the
Board has , during this period, refused to exercise its jurisdiction over
enterprises whose activity unquestionably affected national defense.
I have pointed out the dangers of this approach on numerous occa-
sions. As I noted in the Taicliert case, I sincerely doubt the compe-
tence of this agency to determine that supplying milk of naval ves-
sels,' laundry services to military base hospitals ,' lumber to the
Army,10 construction services to the Air Force," and housing for per-
sonnel at key naval bases ," are not activities which, if affected by labor
disputes , would not have considerable impact upon national defense.
Yet these andothers have been denied the protection and restraints of
the Act during the past few months . Moreover, in the instant de-
cision, the majority cites with apparent disapproval the Westport case
and the fact that jurisdiction has previously been asserted over a cater-
ing company which supplied the only practical source of mealtime food
for almost 27,000 employees of an aircraft plant," I did not agree
then, and I cannot agree now, that this Board should deliberately ex-
pose these aspects of the national defense effort to interruption by in-
dustrial strife.
As a detailed analysis of each of these instances in which the Board
majority has recently refused to take jurisdiction is available in my
dissenting opinions in those cases , I shall not repeat them here. What
is important now, is the fact that the majority have here taken a long
step further in the direction presaged in those cases and have indi-
cated with some definiteness what areas of business related to national
defense they will deprive of the protection of the Act.
As set forth in the majority opinion herein, my colleagues will
henceforth require that three conditions are met before they will assert
jurisdiction over employers engaged in operations affecting the
national defense effort . These conditions are, first , that the enter-
8 McArthur Jersey Farm Dairy, Inc., 107 NLRB 885.
9 Ideal Laundry & Dry Cleaners, at als., 107 NLRB 935.
io Alpine Mill and Lumber Company, 107 NLRB 892.
u Casey Welding Works, 107 NLRB 929.
12 Western Area Housing Company, 107 NLRB 1263.
13 Coburn Catering Company, 100 NLRB 1133.
600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
prise provides goods or services "directly related" to national defense ;
second, that they are provided pursuant-to Government contract or
subcontract; and, third, that the goods and services are valued at
$100,000 or more per year.14
It is immediately clear that one basic assumption is at the root of
these conditions. This assumption is that an enterprise which does
not provide $100,000 or more of goods and services directly related to
national defense and provide them under Government contract can-
not affect national defense to a substantial degree. That this is- a
crucial assumption is without question. We are not dealing here with
the free flow of commerce alone; we are dealing with the security of
the Nation which, to the extent that it is affected by labor disputes
amenable to the rights and restrictions of the Act, is very definitely
the Board's responsibility. If the assumption of the majority is in-
correct, therefore, our national defense effort will certainly be exposed
to, and suffer from, these industrial disputes. I believe that we are
fully entitled, as a result, to question closely the assumption made
by the majority and its basis in fact.
What is the basis then of this conclusion that only enterprises ful-
filling these conditions can affect national defense? On what facts,
statistics, data, study, research, or expert knowledge does it rest? The
majority opinion offers no answer. Indeed, as a member of the Board,
I am unaware of any study or compilation of data by this Agency or
others which either might offer or did offer a basis for the majority
findings. For all that appears from the majority opinion, these con-
ditions and this assumption have no more validity than any other
random guess. This Board does not know how much vital equipment
is produced for the Armed Forces in small plants which have less
than $100,000 of such defense business. This Board does not know
to what extent the defense effort could be crippled by stoppages occur-
ring in peripheral areas of production not directly producing arms,
ammunition, or other war material. This Board does not know to
what extent vital national defense work is performed by firms not
working under Government contract. Yet those unknown facts are
essential as to the validity of the very finding made by the majority
herein.
We may gain some idea, however, of what these conditions will mean
by applying them to known cases. In the Brady Aviation case,15 the
"I note that Member Peterson in his concurring opinion partially disagrees with the
majority opinion, expressing the view that the Board should have a "more sensitive
measure" in dealing with enterprises which affect the national defense Consequently, he
espouses a $50,000 measure instead of a $100,000 measure What justification is there,
however, for using only a partially sensitive measure in this area-a dollar standard no
different from that he would apply to local truckers doing some interstate business? Why
should the Board be unwilling to exercise its full legal jurisdiction in the vital area of
enterprises which affect the national defense?
15 Brady 4vtatson Corporation, 104 NLRB 220
MAYTAG AIRCRAFT CORP. 601
employer was engaged in the assembling of detail parts into major
subassemblies for that use of the United States Air Force and the
United States Navy. Interruption of the production of this employer
would clearly affect the air defense of this country. The receipts of
the Brady firm from this work are in excess of $50,000 yearly. The
majority would not, however, take jurisdiction over a labor dispute
occurring among the employees of Brady in a case arising hereafter
unless those receipts amount to $100,000. Yet is there any way that
this Board can assume that the defense program will not be appre-
ciably injured by such a dispute unless $100,000 of receipts are in-
volved? The answer is obviously no. For myself, it is sufficient that
the requirements of the Air Force and Navy might be impeded to any
degree.
An even more illuminating example is that to be found in the
Thomas Rigging Company case.- There the employer was engaged
in the installation of $1,500,000 worth of machinery for an 81 mm.
mortar shell line in an ammunition plant. The Employer received
$52,000 for these services which, of course, had to be performed before
the plant could commence production. This production, incidentally,
amounted to more than half a million dollars worth of shells in a 6-
month period at a time during the Korean conflict when there was cer-
tainly no surplus of ammunition for our troops. A labor dispute
arose which involved the employees of the Thomas Company. A
panel of two former Board members and myself asserted jurisdiction
under the Westport doctrine, and issued a decision and order as to
the merits of the dispute. The court of appeals thereafter specifically
affirmed the assertion of jurisdiction on the ground that "a work stop-
page in the Company's project of installing machinery at the .. .
[ammunition] plant due to a labor dispute would impede the produc-
tion of vitally needed defense material." Yet if the $100,000 require-
ment of the majority had been in effect at that time, the Board would
not have-exerted its efforts to prevent an interruption of the produc-
tion of hundreds of thousands of dollars of critically needed ammuni-
tion simply because the Thomas Rigging Company had receipts of
only $52,000 for its services.
It is plain, therefore, that the importance of a product or service
to the national defense effort cannot be gauged by how much is paid
for it. We have had too many graphic illustrations to the contrary
when failure of a small plant to produce a vital gear has meant a halt
in the flow of jet engines or tanks or other essentials. Numerous ex-
amples are to be found in the files of the Board. But I think the point
is clear. The effect of a labor dispute occurring within an enterprise
engaged in the national defense effort cannot be measured in terms of
dollar receipts. Nor do the other two requirements of the new stand-
'- Thomas Rigging Company, 102 NLRB 65, enfd , as mod. 211 F. 2d 153 (C. A. 9).
602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and provide any more accurate measurement . The majority does not
apparently consider many items of supply or service contracted for
by the armed services to be "directly related" to the defense program
despite the fact that more expert sources, the purchasing and supply
sections of the Armed Forces and such agencies as the Atomic Energy
Commission, consider these products and services necessary to their
operations 17 Indeed, this undefined and ambiguous term "directly
related" will, I believe, raise both confusion and doubt as to what firms
are to be under our jurisdiction. The requirement of a contract or
subcontract, while ostensibly reasonable, is made in ignorance of how
much essential material is regularly secured by the Armed Forces or
by.the national defense effort without the use of such contracts.
There is a further point to be observed. The majority position
ignores the cumulative effect of unremedied industrial disputes occur-
ring in, those, plants which do not meet the arbitrary requirements of
the new standard. As the Supreme Court has noted,18
Whether or not practices may be deemed by Congress to affect
-interstate commerce is not to be determined by confining judgment
to the quantitative effect of the activities immediately before the
Board. Appropriate for judgment is the fact that the immediate
situation is representative of many others throughout the country,
the total incidence of which if left unchecked may well become
far reaching in its harm to commerce.
Accordingly, the standard now effectuated by the majority must be
judged, not only on the basis of what damage might be done by un-
remedied industrial disputes in any one of the enterprises now to be
excluded, but on the basis of the cumulative impact of industrial dis-
putes among all the enterprises excluded. It is not merely the impact
of a stoppage involving 1 firm and 30 or 60 or 99 thousancl'dollars of
national defense work, but the sum total of what may well be millions
of dollars of such business done by thousands of such firms. We do
not know what that cumulative total may be or any of the other essen-
tial facts upon which to predicate a conclusion that the national de-
fense effort would remain unharmed despite stoppages in these enter-
prises. Yet the majority persists in establishing a standard based
upon an invalid premise and without any knowledge of what result
will obtain. I can see no justification and considerable danger in
"flying blind" under the circumstances.
I would further note that what I said in my dissent in the Highway
Services case 18 is even more true here. There I pointed out that the
assumption of the majority that industrial disputes which might inter-
17 See the Taichert, McArthur Dairy, Alpine Mill, Ideal Laundry , and Casey Welding
cases previously cited.
18 Polish National Alliance v N. L. B. B , 322 U . S. 643, 648.
19 110 NLRB 554. -
TUF-NUT GARMENT MANUFACTURING COMPANY 603
fere with the free flow of mail involving contractors hauling United
States mail who received less than $100,000 for their services were only
matters for State concern, was unwarranted. The implicit assump-
tion of the majority in the instant case that industrial disputes involv-
ing national defense contractors who receive less than $100,000 for their
material or services is also a matter for State rather than Federal con-
cern, is similarly fallacious. Whatever argument for this approach
in matters of private commerce, it is patently inapposite in the areas
of transportation of United States mail and the national defense.
Accordingly, as the new standard is without foundation in fact and
will, on the basis of our past experience, clearly injure the national
defense effort through withdrawal of the Act's protection from areas
particularly sensitive to industrial disputes, I must dissent from the
jurisdictional standard announced herein.
TuF-NUT GARMENT MANUFACTURING COMPANY and INTERNATIONAL
LADIES' GARMENT WORKERS' UNION, LOCAL 386, AFL, PETITIONER
and AMALGAMATED CLOTHING WORKERS OF AMERICA. CIO. Case NO.
32-IBC-765. October 26,195 4
Supplemental Decision and Certification of Representatives
On August 26, 1954, pursuant to a Decision and Direction of Elec-
tion issued by the Board on August 5, 1954, an election was conducted
under the direction and supervision of the Regional Director for the
Fifteenth Region, among the employees of the Employer in the unit
found appropriate in the decision. At the conclusion of the election,
the parties were furnished with a tally of ballots which shows that, of
approximately 559 eligible voters, 282 were cast for the Intervenor,
105 for the Petitioner, 134 against any participating labor organiza-
tion, 3 were challenged, and 2 were void.
On August 30, 1954, the Employer filed objections to conduct affect-
ing the results of the election. In accordance with the Rules and Regu-
lations of the Board, the Regional Director conducted an investigation
of the objections and on September 20, 1954, the Regional Director is-
sued and served upon the parties his report on objections, in which he
found that the objections did not raise substantial and material issues
with respect to the results of the election, and recommended that the
objections be overruled and that the Intervenor be certified on the basis
of the tally of ballots. The Employer, on September 28, 1954, filed
exceptions to the Regional Director's report on objections.
The Employer contended in substance that the Intervenor exceeded
the. bounds of legitimate electioneering by passing out certain litera-
ture at the employees' entrance to the plant on the day of the election
110 NLRB No. 83.