Trico Disposal Service, Inc.

National Labor Relations Board - Board Decisions

Jun 14, 1971

191 N.L.R.B. 104 (N.L.R.B. 1971)

104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Trico Disposal Service, Inc. and International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, Refuse and Salvage Drivers
and Helpers Union Local 609. Cases 6-CA-5251
and 6-RC-5623
June 14, 1971
DECLARATORY ORDER
Pursuant to Section 102.105 and 102.106 of the
Board's Rules and Regulations, Series 8, as amended,
the General Counsel has filed a petition for a Declara-
tory Order to determine whether the Board would as-
sert jurisdiction over Trico Disposal Service, Inc.,
herein called the Employer.
In pertinent part, the petition alleges as follows:
1. International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
Refuse and Salvage Drivers and Helpers Union Local
609, herein called the Union, is the Charging Party in
the unfair labor practice proceeding, Case 6-CA-525 1,
and is the Petitioner in the representation proceeding,
Case 6-RC-5623, both involving the Employer herein.
Subsequent to the hearing in the representation pro-
ceeding, in which the issue of jurisdiction was raised by
the Employer, the Union filed the unfair labor practice
charge, but did not file a request to proceed. Accord-
ingly, no decision in the representation case has issued.
2. The Employer is a California corporation engaged
in the collection and removal of garbage, rubbish, and
trash in the Pittsburgh, Pennsylvania, area. Its gross
annual income of approximately $100,000 is derived
from services performed for the U.S. Army public enti-
ties, and private parties. The Employer has three con-
tracts with the U.S. Army for the collection of garbage,
rubbish, and trash at missile sites and related housing
units in the Pittsburgh area. The contracts are effective
from July 1, 1970, through June 30, 1971, and have a
total value of $26,490.96. The Employer also has a
contract with the Allegheny County Institutional Dis-
trict, political subdivision of the Commonwealth of
Pennsylvania, for the removal of garbage, rubbish, and
trash from a hospital administered and maintained by
the said Institutional District. This contract, effective
from June 15, 1970, through June 14, 1971, is valued
at $19,956. The Institutional District pruchases sup-
plies and materials in excess of $50,000 per annum
from outside the Commonwealth for use at the hospi-
tal. The Employer also has collection contracts with
two Pennsylvania boroughs neither of which meet any
of the Board's jurisdictional standards. The total per
annum value of such contracts is $47,646. In addition,
the Employer receives from various private accounts
approximately $2700 per annum for collection services.
191 NLRB No. 17
3. On October 27, 1970, the Union filed with the
Pennsylvania Labor Relations Board, herein called the
State Board, a petition for investigation and certifica-
tion of representative involving the Employer. The
State Board proceeding is still pending, subject to the
Board's determination of the jurisdictional issue herein.
4. Although served with a copy of the petition herein,
no response as provided by the Board's Rules and
Regulations has been received from either the Em-
ployer or Union.
On the basis of the above, the Board is of the opinion
that:
1. The Employer is a nonretail enterprise engaged in
the collection and removal of garbage, rubbish, and
trash in the Pittsburgh Pennsylvania, area.
2. The Board's current standard for asserting juris-
diction over a nonretail enterprise within its statutory
jurisdiction is a minimum of $50,000 outflow or inflow,
direct or indirect. Siemons Mailing Service, 122 NLRB
81, 85. The petition does not establish that the Em-
ployer's operations satisfy the Board's nonretail juris-
dictional standard because, even if the services ren-
dered under the Employer's contracts with the U.S.
Army and the Institutional District are considered in-
direct outflow, their total value is less than the $50,000
required under Siemons. However, the Employer's ser-
vices to the Institutional District constitute indirect
outflow' and therefore establish the Board's legal or
statutory jurisdiction over the Employer.
3. In Ready Mixed Concrete & Materials, Inc., 122
NLRB 318, the Board determined "to assert jurisdic-
tion over all enterprises as to which the Board has
statutory jurisdiction, whose operations exert a sub-
stantial impact on the national defense, irrespective of
whether the enterprise's operations satisfy any of the
Board's other standards." Here, as indicated above, the
Employer's operations, while not meeting any of the
Board's other standards, come within the Board's legal
or statutory jurisdiction. Further, the Employer has a
contract with the U.S. Army for the collection and
removal of garbage, rubbish, and trash at missile sites
and related housing units in the Pittsburgh area. The
services rendered under this contract are valued at
$26,490.96. We are of the opinion that the Employer's
services rendered to the U.S. Army exert a substantial
impact on national defense within the meaning of the
Ready Mixed standard and, therefore, satisfy that stan-
dard.'
' Since the amount of the Institutional District's out-of-state purchases
are in excess of $50,000, and are of a magnitude which would justify the
Board asserting jurisdiction over it, if it were not exempt as a political
subdivision under Section 2(2) of the Act , the Board treats the services
rendered it by the Employer as indirect outflow for jurisdictional purposes
Carroll-Naslund Disposal, Inc., 152 NLRB 861
3 Calhoun Drywall Company, 139 NLRB 383, John P. Phillips Plastering
Company, Inc., 145 NLRB 1608, Joseph Weinstein Electric Corp., 152
NLRB 25; see Canal Marais Improvement Corp., 129 NLRB 1332; Cf.
TRICO DISPOSAL SERVICE, INC.
Our dissenting colleague apparently thinks that la-
bor disputes which interfere with the removal of the
impressive amounts of garbage, trash, and other wastes
resulting from the operations of a 2-million-man army
would not exert a substantial impact on the national
defense. It is probably true that the Army could use
soldiers to dispose of its garbage. But the Army has
made a determination that, all things considered, it is
better not to use soldiers as garbagemen when there are
so many other pressing national defense tasks to which
they can attend. One can disagree with that decision,
but we are disposed to leave such decisions to the con-
sidered judgment of those whose task it is to give us the
best possible national defense for our national defense
dollars.
In 1958, the Board, in response to various Supreme
Court decisions, abandoned standards adopted in 1954
for the purpose of restricting its exercise of jurisdic-
tion.' Among other liberalizing actions, the Board then
announced that it would henceforward apply the na-
tional defense standard first adopted in 1950,° under
which jurisdiction was asserted over enterprises doing
business with the military departments without regard
to dollar amounts.5 The Board adopted this national
defense standard "because it believes that it has a spe-
cial responsibility as a Federal Agency to reduce the
number of labor disputes which might have an adverse
effect on the Nation's defense efforts."6 (Emphasis sup-
plied.) The Congress, in 1959, amended the Act to
provide, inter alia, that the Board must assert jurisdic-
tion over all labor disputes over which it would have
asserted jurisdiction under Board standards in effect on
July 31, 1959; i.e., the 1958 standards. This action of
Congress, among other things, persuades us that it is
not only desirable that we protect the exercise of Sec-
tion 7 rights by employees of this Employer, but that
it is necessary to do so, if we are to effectuate the
Hesperia Liquid Gas Company, 165 NLRB 756.
' For a discussion of the reasons for the change in policy see Siemons
Mailing Service, 122 NLRB 81
In Ready Mixed Concrete & Materials, Inc., supra, the national defense
standard was stated as applying to operations which "exert a substantial
impact on the national defense , irrespective of whether the enterprise's
operations satisfy any of the Board's other jurisdictional standards." In
Westport Moving and Storage Company, Crate Making Division, 91 NLRB
902 (1950), the Board stated, "We find that it will effectuate the policies of
the Act to assert jurisdiction over enterprises which substantially affect the
national defense." In that case the Board asserted jurisdiction over an enter-
prise which, under contract to the Army, was engaged in making boxes for
shipment of personal effects of military personnel and had annual gross
receipts amounting to $21,000.
6 In Clyde M. Furr, 98 NLRB 1288, jurisdiction was asserted over an
employer who had a $1,740 contract to do caulking on three dormitories and
a fire station at an Army installation. In Richland Laundry & Dry Cleaners,
93 NLRB 680, the Board asserted jurisdiction over a cleaning establishment
doing business on an atomic energy reservation solely on its relationship to
the national defense effort arising from its doing business on the premises
of a defense facility, without regard to whether its business was absolutely
essential to the operations of that facility
6 Ready Mixed Concrete & Materials, Inc., supra.
105
policies embodied in the Act by express congressional
enactment.
Had the Army contracted with a large multimillion
dollar corporation for the removal of garbage from all
its numerous installations, no one would question the
importance of the task or the correctness of a decision
to assert jurisdiction. But as the Supreme Court has
stated:
The Act establishes a framework within which the
Board is to determine "whether proscribed prac-
tices would in particular situations adversely affect
commerce when judged by the full reach of the
constitutional power of Congress. Whether or no
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. Appro-
priate for judgment is the fact that the immediate
situation is representative of many others through-
out the country, the total incidence of which if left
unchecked may well become far-reaching in its
harm to commerce." Polish Alliance v. Labor
Board, 322 U.S. at 648. See also, Labor Board v.
Fainblatt, 306 U.S. at 607-608.'
Within that framework, it matters not that the Army
chooses to contract with numerous small enterprises
rather than to one or two large enterprises; the effect of
labor disputes among employees involved in such work
on the national defense is the same.
For the foregoing reasons, we cannot agree with our
dissenting colleague to decline to exercise jurisdiction
herein.
Accordingly, the Board has determined and the par-
ties are advised pursuant to Section 102.110 of the
Board's Rules and Regulations and to Section 101.43
of the Board's Statements of Procedure that:
On the facts submitted herein, the Board would as-
sert jurisdiction because the Employer's operations ex-
ert a substantial impact on national defense.
CHAIRMAN MILLER, dissenting:
Twenty-six thousand dollars worth of garbage haul-
ing ought to take away a lot of garbage. But the re-
moval of even that impressive quantity of waste from
Pittsburgh missile sites and Army housing units does
not persuade me that the Employer here exerts a "sub-
stantial impact on national defense."
"Substantial impact" continues to be our announced
test in these cases, and I would therefore attempt to
apply it as best I can to the facts of each case. As some
of the cases cited in the majority demonstrate, one may
question just what standards or criteria have been used
on some occasions in the past where seemingly minis-
cule contracts covering quite clearly nonessential de-
' N..L.R.B v. Reliance Fuel Oil Corp., 371 U S. 224, 226.
106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fense functions have been used to justify an assertion of
jurisdiction.
But, in my view , unless we are prepared to abandon
the "substantial impact" test and retreat to something
like "any conceivable impact," we are called on, in
cases such as this one, to exercise our best judgment as
to what is substantial and what is not. And, despite the
majority 's rhetoric , I am not persuaded that it is proper
to use as a criterion whether the function involved, in
toto, is of importance to the defense effort . Rather, as
I understand it, we are called on to decide in each case
whether the operations of the particular contractor are
of sufficient significance to have a substantial impact on
national defense.
Utilizing that test, it is my judgment that the opera-
tions of this particular contractor have only a minor
impact on national defense . Thus, in a day of rising case
loads and not so rapidly rising budgets, I would not
reach out to assert jurisdiction here and would instead
suggest that reasonable prudence dictates we ought not
do so.