Atkinson Electric Co., Inc.

National Labor Relations Board - Board DecisionsApr 30, 1954

108 N.L.R.B. 721 (N.L.R.B. 1954)

ATKINSON ELECTRIC COMPANY, INC. 721 ATKINSON ELECTRIC COMPANY, INC., Petitioner and IN- TERNATIONAL BROTHERHOOD OF ELECTRICAL WORK- ERS, LOCAL NO. 46, AFL and GARAGE, PARKING & SERVICE STATION ATTENDANTS, LOCAL UNION NO. 309, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS , WAREHOUSEMEN AND HELPERS OF AMERICA , AFL. Case No . 19-RM - 127. April 30, 1954 DECISION AND ORDER Upon a petition duly filed under Section 9 ( c) of the National Labor Relations Act, a hearing was held before Albert Gese, 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: 1. The labor organizations involved claim to represent employees of the Employer. 2. No question affecting commerce exists concerning the representation of employees of the Employer within the meaning of Section 9 ( c) (1) and Section 2 (6) and ( 7) of the Act, for the following reasons: The Employer concedes , but International Brotherhood of Electrical Workers, Local No. 46, AFL, challenges, the Board's juris diction. The Employer is engaged at Seattle , Washington, in the electrical contracting and appliance repair business. For the year ending June 30 , 1953 , the Employer made purchases valued in excess of $50,000 , of which about 10 percent was shipped to its shop from points outside the State of Washington. During the same period , its receipts totaled about $ 225,000, all of which was for work performed within the State. Of this sum , approximately $ 38,000 was received for electrical wiring at 2 United States Army installations, and $22,000 for electrical work on a terminal and restaurant for the port of Seattle . The work for the Army and port was performed on a subcontract basis . The Employer also received about $25,000 from Standard Oil Company of California for electrical maintenance work on service stations and bulk plants, and about $ 20,000 from Sunset Advertising Company for the maintenance of advertising billboards . The Employer has a contract with the local distributor of Avco Manufacturing Company's appliances whereby the Employer is the authorized Bendix-Crosley repair agency for a part of the Seattle metropolitan area . For such appliance service work, the Employer received about $ 65,000 annually. There is no evidence in the record that the general con- tractors for whom the Employer performed services were themselves engaged in interstate commerce . It is clear that the Employer ' s services as a subcontractor at the port of Seattle and United States Army installation projects were 108 NLRB NO. 105. 339676 0 - 55 - 47 722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD twice removed from interstate commerce, and therefore may not be counted in deciding whether to assert jurisdiction under the Hollow Tree formula.' For the same reason , we believe that the Employer's services as a subcontractor on two United States Army installations do not substantially affect the na- tional defense.2 There is no evidence that either Sunset Advertising Company or the gasoline service stations and bulk plants for which the Employer performs repair work sell goods outside the State of Washington valued at $25,000 annually.' Finally, the Employer's status as operator of an authorized Bendix-Crosley repair agency is not such as to bring it within the Board's jurisdictional requirements other- wise.4 In view of the foregoing , we find that, although the Em- ployer may be engaged in commerce, it would not effectuate the policies of the Act to assert jurisdiction. Accordingly, we shall dismiss the petition. [The Board dismissed the petition.] Member Murdock, dissenting: I cannot agree with the majority's decision not to assert jurisdiction in this case in which the Employer not only concedes that its business affects interstate commerce but requests the Board to take jurisdiction. The decision to dismiss graphically illustrates the lack of realism in the so-called "twice removed from interstate commerce" rule applied by the majority in Casey Welding Works 5 to services per- formed by subcontractors for channels or instrumentalities of commerce and defense installations. In my dissent in the Casey Welding Works case , I pointed out that the "twice removed" rule of the majority does not truly measure the impact of an employer's operations on interstate commerce, that it leads to inconsistent results as applied to different employers, and is thus not a proper standard by which to decide the important question of whether or not the Board shall assert jurisdiction. In the instant case the Employer, who is engaged in the electrical contracting and appliance repair business, performed under subcontracts electrical work in the value of $22,000 on a terminal and restaurant building for the port of Seattle, and electrical wiring in the value of $ 38,600 for the United States Army. Of this latter amount, $6,000 was received for services performed on ammunition storage facilities at the Yakima Training Center, a military reservation, and $32,600 was received for electrical wiring at United States Army 1Casey Welding Works, 107 NLRB 929. 2 Casey Welding Works, supra. 3Crown Sign and Construction Company, 99 NLRB 843. 4Reiley's Stores, Inc., 96 NLRB 516. 5107 NLRB 929. SHORELAND FREEZERS, INC. 723 defense area installations at Vashon Harbor, Manchester, and Winslow, Washington. The nature of these latter installations is not completely disclosed by the record, but the importance of their role in our Nation ' s defense may be inferred from the Employer's characterization of them as follows: "Well, I can say this much, they were triple defense sites, I shouldn't say anything more." One need not be a military expert to appreciate the important role the Seattle area, with its greatport ( the point of embarka- tion for Alaska), its large airplane manufacturing plants, and the military post, Fort Lewis, plays in our Nation' s defense. Nor does it require such imagination to appreciate the vital part electrical energy performs in the operation of the military installations designed to defend such an important area of our country. It is thus plain that the services supplied by this Employer to these vital army defense installations have a substantial effect on our Nation's defense, and this is true whether or not the prime contractor is himself engaged in interstate commerce and without regard to whether this Employer provides them as a prime contractor or as a sub- contractor. To hold otherwise is to sacrifice realism for the sake of dogma. For the foregoing reasons I find that it would effectuate the policies of the Act to as sert jurisdiction over the Employer. 6 6See also my dissent in Taichert 's Inc., 107 NLRB 779. SHORELAND FREEZERS, INC. and INTERNATIONAL BROTH- ERHOOD OF BOILERMAKERS, IRON SHIPBUILDERS, BLACKSMITHS, FORGERS AND HELPERS, Petitioner. Case No. 5-RC-1439. April 30, 1954 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Louis S. Wallerstein, hearing officer. 1 The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. 2 'At the hearing, the petition and other formal papers were amended to show the correct name of the Employer. On March 11, 1954, the Employer filed a motion to make certain corrections in the transcriptofthehearing As no objections have been made by the Petitioner, the Employer's motion is granted. It is hereby ordered that the record be, and it hereby is, corrected in accordance with the Employer's motion. 2 The hearing officer referred to the Board the Employer's motions to dismiss the petition on the following grounds: (1) As the operations of the Employer are essentially local and agricultural, the Board should not assert jurisdiction; (2) the unit requested by the Petitioner is inappropriate, and can be justified only by giving controlling weight to the Petitioner's extent of organization; (3) because of the seasonal nature of the Employer's business, an 108 NLRB No. 96.