United Automobile, Aircraft and Agricultural Implement Workers of America

National Labor Relations Board - Board Decisions

Dec 21, 1953

107 N.L.R.B. 470 (N.L.R.B. 1953)

47 0 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
majority has repeated that conclusion in its "Determination of
Dispute" herein. As if to leave no doubt, however, as to the fact
that this is being handled as a representation case, the ma-
jority, in its opinion states," . . . and as the Pipefitters here
presented no new facts which would warrant a new and differ-
ent disposition of the unit questions, we find that the employees
performing the work in dispute have interests in working con-
ditions more closely related to those of the production and
maintenance employees than to the employees in the pipe-
fitter and welder units." It is inconceivable to me that Con-
gress intended appropriate unit questions to be relitigated in
a Section 10 (k) proceeding. But that is not all--for, after
having conformed Section 10 (k) to encompass a representa-
tion proceeding, the majority further compounds confusion by
stating, "We are not, however, by this action to be regarded
as `assigning ' certain pipe and welding work to the Oil Work-
ers." Whatever this may mean in its context, I doubt that it
will serve these parties or any others who come before the
Board as that clear delineation of rights and that signpost to
future conduct which should be essential characteristics of a
Board decision.
For the reasons appearing above, I would quash the notice
of hearing under Section 10 (k).
LOCAL 1083, UNITED AUTOMOBILE, AIRCRAFT AND AGRI-
CULTURAL IMPLEMENT WORKERS OF AMERICA, CIO
and ALLIED INDEPENDENT UNIONS, C.U.A., Petitioner.
Case No. 13-RC-3479. December 21, 1953
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Helene Zogg,
hearing officer. The hearing officer's rulings made at the
hearing are free from prejudicial error and are hereby
affirmed.
At the close of the hearing, the Employer moved to dismiss
this proceeding. For the reason hereinafter stated, the motion
is granted.
The Employer operates a commissary located on the plant
premises of Kearney & Trecker Corporation at West Allis,
Wisconsin, where it sells lunches, sandwiches, beverages,
and other miscellaneous items to the employees working in
the plant. The Employer pays a rental for the location to
Kearney & Trecker Corporation, and retains the commissary
profits for its own purposes. The Employer's executive board
is responsible for management of the commissary, and controls
the hiring and discharge of commissary employees. The
commissary annually purchases foodstuffs and supplies amount-
ing to more than $ 100,000, or which approximately $ 10,000 is
107 NLRB No 107.
LOCAL 1083, UNITED AUTOMOBILE, AIRCRAFT, ETC. 47 1
purchased from sources outside the State. Its sales are made
entirely within the State.
Upon the basis of the above facts, and without determining
whether the Employer is engaged in commerce within the
meaning of the Act, the Board finds that the impact of the
commissary operations upon such commerce is so insubstantial
that it would not effectuate the policies of the Act to assert
jurisdiction in this case. We shall therefore dismiss the
petition.'
[The Board dismissed the petition.]
Member Murdock dissenting:
I dissent from the majority's departure from the Board's
jurisdictional plan in refusing to assert jurisdiction over an
employer who furnishes services valued in excess of $50,000
which are necessary to the operation of an enterprise engaged
in interstate commerce.
The Employer operates a commissary on the plant premises
of Kearney-Trecker Corporation at West Allis, Wisconsin.
During the year 1952 it furnished meals to Kearney-Trecker's
employees valued in excess of $100,000. During the same period
it made direct purchases from outside the State of Wisconsin
in the value of $10,000. The commissary is in operation 24
hours a day. The record does not disclose that there are other
eating facilities nearby (assuming this is material) which would
be able to provide the necessary commissary services to
Kearney-Trecker's employees, should the Employer's oper-
ations be curtailed. Kearney-Trecker annually purchases raw
materials in the value of $5,000,000, 50 percent of which is
shipped to it directly from out of State. It annually sells products
valued in excess of $5,000,000 to points outside the State of
Wisconsin.
It is thus clear that this Employer falls within category 5 of
the jurisdictional plan covering intrastate enterprises furnish-
ing services valued at $50,000 or more "necessary to the
operation of" a manufacturer selling goods valued at $25,000 or
more outside of the State.' During the past 3 years which the
jurisdictional plan has been in effect the Board has issued
several decisions treating similar enterprises within this
section of the plan.' Indeed, as recently as October 29, my
majority colleagues themselves asserted jurisidiction over an
employer similarly engaged in furnishing food and cafeteria
services to employees of International Harvester Co. at its
iTo the extent that our decision herein is inconsistent with Coburn Catering Company, 100
NLRB 1133, Fairchild Cafeteria, 92 NLRB 809, and similar cases, those decisions are hereby
overruled.
2 Hollow Tree Lumber Company, 91 NLRB 635.
3Olin Industries, Inc., 97 NLRB 130; Fairchild Cafeteria, 92 NLRB 809, 87 NLRB 667;
Delco-Remy Division, General Motors Corporation, 89 NLRB 1334; Kansas Commissary
Service, Inc., 88 NLRB 1086; National Food Corporation, 88 NLRB 1500; cf. Air Terminal
Service, 67 NLRB 702.
472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
East Moline, Illinois, plant.' (If there is anybasis for conclud-
ing that feeding International Harvester's East Moline employees
has a significantly greater impact on interstate commerce
than feeding Kearney and Trecker's West Allis employees, it
is not apparent to me.) The refusal to assert jurisdiction over
this employer is thus contrary to the Board's jurisdictional
plan and to a line of decisions following it issued as recently
as a month ago.
Even if we were to ignore the jurisdictional plan and prece-
dents thereunder, approaching the case on an ad hoc basis (a
practice which appears to be growing), I could not agree with my
colleagues that the impact of the Employer's operations on
interstate commerce is so insubstantial that it would not
effectuate the purposes of the Act to assert jurisdiction. Their
cryptic conclusion to this effect- -completely unexplicated--
appears to me to ignore the realities of industrial life. The
Employer provides food and cafeteria service, on a 24-hour
basis to 1,700 employees who are engaged in producing goods
valued in excess of $5,000,000 which are shipped in interstate
commerce. In the production of goods the feeding of employees
who operate the machines is just as important as the fueling of
the boilers which run the machines, and it cannot be denied that
the feeding of the employees conveniently and quickly and with-
out their being required to leave the plant is an effective step
in maintaining production. The fact that Kearney-Trecker pro-
vide such cafeteria service is persuasive indication that this is
true. The curtailment of the commissary operations resulting
from a strike of the Employer's employees would have an
impact on the production of goods for interstate commerce in
the Kearney-Trecker plant.
Accordingly, as the Employer furnishes in excess of $50,000
worth of services which are "necessary to the operations of"
Kearney-Trecker, an enterprise which is engaged in the pro-
duction of goods destined for interstate commerce of a value far
in excess of $25,000, I would assert jurisdiction over the
Employer on the basis of the Hollow Tree case which has not
been overruled as the Board's official policy in this area.
4Harding & Williams, 13-RC-3559, not reported in printed volumes of Board Decisions.
FLINT RIVER MILLS, INC. and UNITED STONE AND ALLIED
PRODUCTS WORKERS OF AMERICA, CIO. Case No. 10-CA-
1580. December 22, 1953
DECISION AND ORDER
On September 11, 1953, Trial Examiner Richard N. Ivins
issued his Intermediate Report in the above-entitled pro-
ceeding, finding that the Respondent had engaged in and was
engaging in certain unfair labor practices and recommending
107 NLRB No. 112.