Western Area Housing Co.

National Labor Relations Board - Board Decisions

Feb 24, 1954

107 N.L.R.B. 1263 (N.L.R.B. 1954)

WESTERN AREA HOUSING COMPANY 1263
WE WILL make whole G. J. McDaniels and Earl Saylor for any loss of pay suffered
by them as a result of the discrimination against them.
PAINTERS, DECORATORS & PAPERHANGERS
OF AMERICA, LOCAL 902, AFL,
Labor Organization.
Dated .............. By........................ ........... ...........................................
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be altered,
defaced, or covered by any other material.
WESTERN AREA HOUSING COMPANY and SOUTHERN CALI-
FORNIA DISTRICT COUNCIL OF LABORERS AND AFFIL-
IATED LOCAL NO. 89 OF SAN DIEGO, CALIFORNIA,
A.F.L., Petitioner, Case No. 21-RC-3335. February 24, 1954
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Floyd C.
Brewer, 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:
The Employer, a California corporation, owns and operates
a housing project in San Diego, California, which has 895
rental units. The project was privately constructed, according
to designs prepared by the Navy Department, after the Navy
Department had, in accordance with the provisions of the
Wherry Act' under which the project was built, certified to
the need for additional housing in San Diego.
By virtue of a written agreement between the Employer and
the Navy Department, Navy personnel and civilian employees
of the Navy Department have priority rights to the Employer's
rental units. The maximum rentals for the apartments are reg-
ulated by the Federal Housing Administration and any changes
in the rent must be approved by the Navy Department.
The Employer's project is now almost occupied. Of the
approximately 850 families residing therein, about 750 families
are "either directly or immediately connected with the U. S.
Navy in one or other of its branches." The Employer' s gross
income from rentals has averagedbetween $68,000and $71,000
per month. All the items required by the Employer to maintain
the project, such as paint, glass, and cleaning solvents, are
purchased locally in an unspecified amount. The record does
not disclose whether any of these supplies originate out of
State.
163 Stat. 570.
107 NLRB No. 264.
1264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon consideration of the above facts, and the entire recora,
we find it unnecessary to decide whether or not the Employer
is engaged in commerce within the meaning of the Act. Even
if we were to assume that we have legal jurisdiction, we would
not assert it here. Assuming legal jurisdiction, the only
theory under which jurisdiction would betaken even under prior
Board policy is that the Employer's business substantially
affects the national defense.2 And such a finding is not war-
ranted in this case.
The employees involved here are the maintenance employees,
janitors, and gardeners employed by the owner of a housing
development. The only pretext for asserting jurisdiction would
have to be the fact that most of the tenants are Navy personnel
and civilian employees of the Navy Department and their fami-
lies. In our opinion, the maintenance and operation of this
housing development has no substantial effect on national de-
fense. In view of all the foregoing, we shall dismiss the petition.
[The Board dismissed the petition.]
Member Murdock, dissenting:
Icannot agree with the finding of my colleagues that even
if the Board has jurisdiction over this Employer it should not
assert it because the Employer's operations do not substantially
affect the national defense. In view of my position and their
reservation of the question whether legal jurisdiction exists,
it becomes necessary for- me to discuss first the question
whether the Board has legal jurisdiction.
The Employer's housing project of 895 units was constructed
in San Diego under the Military Housing Insurance Act 9
which authorizes F.H.A. mortgage loans for the construction of
rental housing for military and civilian personnel at military
installations where the Secretary of Defense or his designee
certifies the project is "necessary to provide adequate housing
for such personnel...." The Navy Department determined that
San Diego was 1 ,791 rental units short and employed architects
to design this project. Not only was this project built with
Federal credit to fill a certified military need but it is under
continued Federal supervision. The F.H.A. regulates maximum
rents until the 36-year mortgage is paid, changes in rents must
be approved by the Navy Department, and under the law all
rental units must first be offered to either military or civilian
personnel of the Navy Department: 750 units are so rented today.
Gross rentals exceed $800,000 per year. The foregoing facts
are contained in the 17-page transcript of,testimony in this
case. In addition thereto I take judicial notice4 of the following
2 See Westport Moving and Storage Company, 91 NLRB 902.
312 U.S.C.A sec. 1748, et s
4See 9 Wigmore Evidence (3rd Ed. 1940) secs. 2565, 2571, 2580; 31 Corpus Juris Secundem
secs. 7, 9, 12; and U. S. v. Pierce Auto Lines, 327 U. S. 515. 529- -530 (1946), among the au-
thorities setting forth the general principles supporting the use of judicial notice. A closely
WESTERN AREA HOUSING COMPANY 1265
two facts which are of common knowledge : ( 1) San Diego
is a naval base ; ( 2) naval vessels which enter and leave such
a base navigate beyond the confines of the state of California.
Assuming'. arguendo , that the general concept of impact of
an employer ' s operations on national defense is not in itself
a sufficient basis on which to support the jurisdiction of this
Board, but that we must be able to isolate certain movements
across State lines which may be " affected " by an employer's
operations in order to take jurisdiction , it is plain as noted
above that such movement of naval vessels across a State
line exists here. And certainly the servicing of ships at a naval
base has an"effect" on their movement- -indeed it maybe indis-
pensable to such movement . Moreover, I would direct attention
to the fact that in the Machine Products Company cases
the Board took jurisdiction on national defense grounds of an
employer engaged in maintaining in "standby" condition under
contract with the Air Force an aircraft assembly plant
located in Oklahoma which had been used tb produce planes
during World War II but which was no longer operating. No
discernible movement across State lines was apparent on the
record in that case . Nevertheless , the Court of Appeals for
the Tenth Circuit enforced the Board ' s order . If the Board
has the power to assert jurisdiction over what in effect is a
"moth-balled" plane factory in the heart of Oklahoma because
of its effect on the national defense, it certainly must have the
power to assert jurisdiction over an employer operating a
housing project for military and civilian personnel at a
presently functioning naval base. I also note that the Board
has taken jurisdiction of a housing project of a large insurance
company, rejecting a claim that its impact on commerce
was too remote to warrant assertion of jurisdictions and that
the Court of Appeals for the Fifth Circuit has upheld the
Board's assertion of jurisdiction over an apartment hotel
operated by an oil company.7 The crucial question then is
one of policy--does the Board wish to assert jurisdiction.
The jurisdictional plan provides that the Board will assert
jurisdiction over enterprises which have a substantial effect
on the national defenses My colleagues solemnly pronounce
that this housing project does not so affect the national
defense. The legislative history of the Military Housing
Insurance Act clearly establishes , however, the judgment of the
armed services , adopted by the Congress, that such a project
bears a very important and vital relationship to "the efficiency
analogous specific instance of judicial notice cited by Wigmore is to be found in State v.
Dade County, 157 Fla. 859, 27 So. 2d 283. 285 ( 1946 ), where the Supreme Court of Florida
took judicial notice that "Miami is potentially one of the greatest air distribution points in
the world , and that Florida is the port of entry for air transporation from South and Central
America , the West Indies and Africa."
594 NLRB 668, enforced 198 F 2d 313.
6 Metropolitan Life Insurance Company , 93 NLRB 38.
7 Phillips Petroleum Company v, N. L. R . B., 206 F. 2d 26.
8 Westport Moving and Storage Company , supra
1266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the armed services " and hence to the national defense. The
Senate and House Reports on this legislation state, inter alia,
as follows:
Representatives of the three branches of the National
Military Establishment , appearing before your committee,
strongly urged the enactment of this measure. They
stressed , in terms of the efficiency of the armed services,
the urgent need for adequate housing facilities to serve
families of their personnel . They made it abundantly clear
that , to attract and hold the highly trained , experienced, and
technical personnel now required by the Departments of the
Army, the Navy , and the Air Force, it is essential that
this personnel be afforded an opportunity to live comfortable
and normal lives, insofar as military duty permits, on
a reasonable parity in terms of housing , with the average
American citizen . The fact that most of them do not now
have this privilege is a major contributing factor to the
existence of a morale problem that bears on the effec-
tiveness of our armed forces, to the difficulties in
recruiting able men, and to the large percentage of trained
men who are failing to reenlist at the expiration of their
enlistment terms.
Adequately training men to maintain and operate our
present-day intricate war machines is an extensive and
costly undertaking . Whenever a trained man fails to
reenlist , the investment of the Government in his training
is lost to the armed services involved and another man
must be given similar training . The Air Force in
September 1948 made an analysis of its enlisted personnel
which indicated that only 59 percent of all married en-
listed personnel intended to reenlist . However, 79 percent
indicated that they would reenlist if the Government were
to provide family. housing . Those failing to reenlist include
some of the best trained and most able men.
Normally the housing units needed at each installation
would be supplied through the construction of public
quarters by the military forces . However, meeting this
present need in its entirety through the use of public
funds would require a tremendous direct expenditure by
the Federal Government . It is therefore extremely im-
portant that private builders be encouraged to construct
as much of this as possible.
The bill is designed to encourage them to construct such
housing .9 In the light of the foregoing congressional statement,
the determination of the Navy Department that San Diego
was 1,791 rental units short , the certification of the Secretary
of Defense that this project was "necessary to provide
adequate housing" for military and civilian personnel at
9Senate Report No. 410, May 20 , 1949; House Report No. 854, June 20, 1949 , on S. 1184,
81st Congress , Fitst Session.
THE CROSS COMPANY 1267
San Diego, and the obvious relationship between the housing
of such personnel and the functioning of this important naval
operating base, I cannot see how this Board can do anything
but agree that such a project has a substantial effect on the
national defense. An industrial dispute resulting in a work
stoppage by the maintenance workers of the Employer who
are here petitioned for, could result in no heat for tenants, no
running water or toilets, etc., and the creation of conditions
inimical to the morale and efficiency of military and civilian
employees which Congress sought to foster by the establishment
of such housing.
I have recently discussed at some length in my Taichert's
Inc., 10 dissent the considerations which underlay the adoption
of the national defense concept of the Board's jurisdictional
plan and the liberal approach in the application of this concept
which the Board had theretofore taken and which I regard as
the proper one. I still fail to understand a narrow grudging
use of the Board's power in this field. I cannot but believe
that in the area of enterprises related to the national defense
Congress must have intended that the Board exercise its full
power. Accordingly, under all the circumstances, Iwould assert
jurisdiction over this Employer.
10 107 NLRB 779.
THE CROSS COMPANY and LOCAL 155, UNITED AUTOMO-
BILE, AIRCRAFT AND AGRICULTURAL, IMPLEMENT
WORKERS OF AMERICA, AND INTERNATIONAL UNION,
UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL
IMPLEMENT WORKERS OF AMERICA, CIO, Petitioner.
Case No. 7-RC-2125. February 24, 1954
SUPPLEMENTAL DECISION, ORDER, AND SECOND
DIRECTION OF ELECTION
On June 4, 1953, pursuant to a Decision and Direction of
Election issued by the Board on May 18, 1953, 1 an election by
secret ballot was conducted in this proceeding under the direc-
tion and supervision of the Regional Director for the Seventh
Region, among employees in the unit found to be appropriate.
The tally of ballots furnished the parties after the election
shows that, of approximately 197 eligible voters, 195 cast
valid ballots, of which 87 were cast for the Petitioner, 108
were cast against the Petitioner, and 1 ballot was challenged.
On June 9, 1953, the Petitioner filed timely objections to
conduct affecting the results of the election. Pursuant to
Board Rules and Regulations, the Regional Director conducted
an investigation of the objections, and on August 5, 1953,
1Not reported in printed volumes of Board Decisions and Orders.
107 NLRB No. 276.