United Automobile, Aircraft and Agricultural Implement Workers of America

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.