Northwest Airlines, Inc.

National Labor Relations Board - Board Decisions

Feb 13, 1943

47 N.L.R.B. 498 (N.L.R.B. 1943)

In the, Matter, of NORTHWEST- AIRLINES (INC. and INTERNATIONAL
UNION, UNITED AUTO roBILE, AIRCRAFT & AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA, LOCAL 134, C. I. O.
Case No. R-41524.-Decided February 13, 1943
Jurisdiction : bomber modification project of an air carrier, found not subject
to the jurisdiction of the Board.
Doherty, Rumble;, Butler,, Sullivan cC Mitchell, by Mr. P, ierce,Butler
and Mr. Irving Clark, of St. Paul, Minn., for the Company. . .
Helstein of Hall, by Mr. Douglas Hall, Mr. Joseph Mattson, and
Mr. James F. Kirby, of Minneapolis, Minn., and Mr. Maurice Sugar,
Mr. Ernest Goodman, and Mr. Morton Eden,, ,of -Detroit, Mich., .for,
the U. A. W.-C. I. O.
M. Lee Pressman andtMr. Eugene Cotton, of Washington, D. C.,
for the C. I. O. -
Mr. C. M. Mulholland, of Toledo, Ohio, and Mr. J. L. McFarland,
of Chicago, Ill., for the Association.
Covington, Burling, Rublee, Acheson & Shorb, by Mr. Gerhard A.
Gesell, Mr. Charles -M. Davison, Jr., -and; Mr. Geo. S. Elpern, of
Washington, D. C., for am-ici curiae.
Mr. Leon Novak, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon petition duly filed by International Union, United Auto-
mobile,' Aircraft & Agricultural Implement Workers of America,
Local 134 , C. I. 0., herein called the U. A. W.-C. I. O., alleging that
a, question affecting commerce had arisen concerning the representa-
tion of employees -of Northwest Airlines, Inc., St. Paul , Minnesota,
herein called the Company , the National Labor Relations Board
provided for an appropriate hearing upon due notice before Stephen
M. Reynolds , Trial Examiner . Said hearing was held at Minne-
apolis, Minnesota, on November 10, 1942. The Company, the
U. A. W.-C. I. 0., and Air Line Mechanics Association , herein called
the Association , appeared , participated , and, were afforded full op-
47N L . R B,No.69. , -
498
NORTHWEST AIRLINES, INC. 499
portullity to be heard, to examine 'and cross-examine witnesses, and
,to introduce evidence bearing on the issues. The Trial Examiner's
rulings made at the hearing are free from prejudicial error and are
hereby affirmed. On December 4, 1942, the Board granted the fol-
lowing air carriers permission to file briefs and present oral argument
as am,ici, curiae: -American Airlines; Inc ; Braniff Airways, -Inc.;
-Chicago and Southern Air Lines, Inc.; Colonial Airlines, Inc.; Delta
Air Corporation ; Eastern Air Lines,, Inc. ; Inland Air Lines, Inc. ;
Mid-Continent Airlines, Inc. ; National Airlines, Inc.;, Northeast
Airlines, Inc.; Pan American Airways, Inc.; Pan American-Grace
Airways, Inc.; Pennsylvania-Central Airlines Corporation; Trans-
continental & Western Air, Inc.; United Air Lines Transport Cor-
poratioan; and ^Vestern°Air Lines, Inc. Oral argument was presented
to the, Board in Washington, D. C., on December 10, 1942, all"of the
parties being represented by counsel. All the parties, including the
anzici curiae, filed briefs which have been considered by the Board.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Northwest Airlines, Inc., is- a Minnesota corportition with its
principal office and place of business in St. Paul, Minnesota. It
operates as .a carrier by air, transporting passengers, freight, and,
mail from Chicago, Illinois, to Seattle, Washington; from Minne-
apolis, Minnesota, to Duluth, Minnesota; from Fargo, North Dakota,
to Grand Forks, North Dakota, and Winnipeg, Manitoba. , The Com-
pany-maintains offices at various points on these,routes. In addition
to Its business of transportation, the Company, pursuant to a con-
tract with the War Department of the United States Government,
operates a Military Bomber Modification Project at its plant located
at,St. Paul, Minnesota. Bombers are flown from other parts of the
country to the Company's St. Paul,plant, where its employees install
various parts and make certain modifications. The. Company -admits
that it is'engaged in commerce within the meaning of the National
Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
International Union, United Automobile, Aircraft & Agricultural
Implement Workers of America, Local 134, is a labor organization
affiliated with the Congress of Industrial Organizations , admitting
to membership employees -of the Company.
Air Line Mechanics Association is an unaffiliated labor oiganizatioli
admitting to membership employees of the Company. -
500 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD
III. TIDE ,ALLEGED QUESTION CONCERNING REPRESENTATION -
Since about 1935, the Company has operated as a common carrier
by air, transporting mail, passengers, and property over regularly es-
tablished routes. In the course of these operation's, the Company
maintains hangars, machine shops,' and, administrative offices in St.
Paul and Minneapolis, Minnesota. 'In February 1942, the Company
undertook, pursuant to contract with the United States War Depart-
ment, to use its existing facilities and such additional facilities as
necessary for the' purpose of installing in military aircraft various
parts and armament and performing' maintenance work on such
aircraft. This work is referred to as the bomber modification proj-
ect, and is the operation with which Ave are here primarily concerned.
The Company, the Association, and the amici urge that 'the petition
of the U. A. W.-C. I. 0., which seeks to establish a unit of employees
working at the modification project, be dismissed on the ground that
the. project is not subject to the jurisdiction of the Board. The
U. A. W.-C. I. 0., on the other hand, contends that the Board has
jurisdiction.
The contention of the Company, which is in substance also- that
of the Association and the amici, is that if an employer is "in any
measure subject" to the Railway Labor Act, then "he and all his
activities are removed 'from the jurisdiction, of the National Labor
Relations Board, since, by the explicit terms of Section 2 (2) [of
the National Labor Relations Act], he is ' no longer an employer:"
The argument proceeds, therefore, that since the Company is subject
to the Railway Labor Act in its customary carrier -activities, and
since the bomber modification project is an activity carried,on by
the Company; it follows that as to that project the Company is not
an employer within the meaning of the Act. On the other hand,
the U. A. W.-C. LO. maintains that the test of jurisdiction depends
upon the nature of the work immediately involved, and that the
record here shows that the bomber modification project is sufficiently
separated from the normal carrier activities of the Company to
remove it from the exclusionary provisions of Section 2 (2) of the
Act.
Section 2 (2) of the Act provides: "The term `employer' ... shall
not include . . any person subject to the Railway Labor Act."
Title II of the'. Railway Labor Act provides that "every common
carrier by air engaged in interstate or foreign commerce" and "every
air pilot or other person who performs, any work as- an employee or'
subordinate', official of such carrier," are,<"respectively, "carriers" and,
"employees" within the meaning of that Act.' ,
1 45 U. S . C. A., Section 181.
I
NORTHWEST AIRLINES, INC.' 501,
While a literal interpretation of these provisions would seem to
lead to the conclusion urged by the Company, the decisions of other
administrative agencies, as well as of the courts, are persuasive of
the view that the terms "carrier" and "employe" as used- in the
,Railway Labor Act are to be interpreted realistically.2 We there-
fore reject the foregoing argument of the Company, which would
lead to the result that all activities of a concern are exempt from
the provisions of the.Act if it operates to any extent, however in-
cidental, as it carrier by air.
The bomber modification project is an emergency wartime activity
and is to a considerable extent integrated with the regular transporta-
tion activities of the Company. While the location of the new proj-
ect is in the main separated from that of the other airline operations,
the'project is under the same auditing and clerical, engineering, and
traffic departments as are the airline activities. Regular stock equip-
ment was adapted, except with minor exceptions, to use on the project.
The Company's' established shops perform such project work' as
welding, engine overhauling, and sheet metal 'overhauling. Inspec-
tion work incident to the project operations is under the supervision
,of the chief inspector of the entire plant. There is some interchange
of employees between the project and the airline operations. It
appears that some of the planes, both during the time they, are being
modified and afterward, are assigned by the Army to the- Company
,to be used in connection with transport work.
Although the question is by no means free from doubt, we are of
the opinion and find that the relation of the Company's bomber modi-
fication project to its regular air carrier activities is not so remote,
tenuous, and negligible as to establish that the project is a separate
and distinct enterprise and that the Company therefore is, as to this
project, an employer within the meaning of the Act. In view of the
exclusionary provision in Section 2 (2) of the Act, it is our opinion
that it should be clear that the National Mediation Board, the agency
primarily vested with jurisdiction by the terms of the Railway Labor
2In Virginian Railway v System Federation No 40, 300 U S 515 , the Supreme Court
held that the Railway Labor Act was applicable to the "back shop " employees of a rail-
road carrier , and stated that "It is the nature of the work done and its relation to inter-
state transportation which afford adequate basis for the exercise of the regulatory power
of Congress " The Interstate Commerce Commission , in performing the duties assigned
to it has adopted as a test whether the relation of the work performed by the employees
concerned to the interstate carrier activities is "remote , tenuous and negligible " Matter
of Hudson cC Manhattan Railway Co , 24,5 I . C. C 415, 425 The Railipad Retirement Act
defines an employer subject thereto in substantially the same terms as used in Title I of
the Railway Labor Act in defining a cariier. 45 U S C. A. , Section 228i . The Railroad
Retirement Board has issued regulations and interpretations which clearly show that the
s.ime legal entity may or may not be an employer subject to the Retirement Act, depending
upon the nature of the specific enterprise under consideration See 4 Federal Register 1479
(April 7 , 1939 ) ; Annual Report of Railroad Retirement Board ( 1938), p. 145-6. See also
Anderson v. Bigelow, 130 F.' (2d) 460 ( C. C. A 9).
502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Act, has declined to assume jurisdiction ' over the operations here in-
volved. No such showing has been made. In the absence thereof,
and since we cannot say that the. project operations are remotely.
and incidentally related to the normal air carrier work .of the Com-
pany, we find that the project is not subject to our jurisdiction.
ORDER
Upon the basis of the foregoing findings of fact, the National
Labor Relations Board hereby orders that the petition for investiga-
tion and certification filed by International Union, United Automo-
bile, Aircraft & Agricultural Implement Workers of America, Local
134, C. 1. 0., be, and it hereby is, dismissed.