Brooks Wood Products

National Labor Relations Board - Board Decisions

Nov 30, 1953

107 N.L.R.B. 237 (N.L.R.B. 1953)

BROOKS WOOD PRODUCTS 237
[The Board certified International Union of Electrical, Radio,
and Machine Workers, CIO, as the designated collective-bar-
ganing representative of the employees of the Employer in the
unit found appropriate in the Decision and Direction of Elec-
tion herein.]
THOMAS W. BROOKS AND COLLIN BROOKS d/b/a BROOKS
WOOD PRODUCTS and INTERNATIONAL UNION, UNITED
AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLE-
MENT WORKERS OF AMERICA (UAW-CIO). Case No.
7-CA-719. November 30, 1953
DECISION AND ORDER
Upon a charge and amended charge filed by the International
Union, United Automobile, Aircraft and Agricultural Implement
Workers of America, UAW-CIO, herein called the Union, the
General Counsel of the National Labor Relations Board, herein
called the General Counsel, by the Regional Director for the
Seventh Region (Detroit, Michigan), issued a complaint dated
December 12, 1952, against Thomas W. Brooks and Collin
Brooks, d/b/a Brooks Wood Products, herein called the Re-
spondents, alleging that the Respondents had engaged in and
were engaging in certain unfair labor practices affecting com-
merce within the meaning of Section 8 (a) (1) and (3) and Sec-
tion 2 (6) and (7) of the National Labor Relations Act, as
amended (61 Stat. 136), herein called the Act. Copies of the
charges, the complaint, and notice of hearing were duly served
upon the" Respondents and the Union. The Respondents duly
filed their answer, in which they denied the commission of
any unfair labor practices.
Pursuant to notice, a hearing was held at West Branch,
Michigan, on January 26, 1953, and at Mio, Michigan, on various
dates between January 27 and February 19, 1953, before
Sydney S. Asher, Jr., the Trial Examiner duly designated by
the Chief Trial Examiner. The General Counsel and the Re-
spondents were represented by counsel; the Union by its inter-
national representative. All parties participated in the hearing
and were afforded a full opportunity to be heard, to examine
and cross - examine witnesses , and to introduce evidence bear-
ing on the issues.
On July 6, 1953, the Trial Examiner issued his Intermediate
Report, finding that the Respondents had engaged in and were
engaging in certain unfair labor practices alleged in the
complaint, and recommending that they cease anddesistthere-
from and take certain affirmative remedial action. Thereafter,
the Respondents and the Union filed exceptions to the Inter-
mediate Report; the Respondents also filed a supporting brief.
The Board has reviewed the rulings made by the Trial
Examiner at the hearing and finds that no prejudicial error
107 NLRB No. 71.
337593 0 - 55 - 17
238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was committed. The rulings are hereby affirmed. The Board
has considered the Intermediate Report, the exceptions, the
brief, and the entire record in the case and finds merit in the
Respondents' exceptions with respect to the issue on the Board's
exercise of jurisdiction over the Respondents. I
The Respondents are a Michigan partnership engaged at
Mio, Michigan, in the manufacture and sale of wooden pallets,
separators, and related items used in the storing, handling,
and crating of other products, such as automotive parts. An-
nually they sell about $223,000 worth of goods to their sole
customer, Plymouth Wood Products, herein called Plymouth,
also an independent Michigan partnership. Plymouth, in turn,
does all of its business in the State of Michigan; it sells about
70 percent of the-Respondents' products to the Budd Company
and the Kelsey-Hayes Wheel Company, both located in Michi-
gan and both doing a very substantial interstate business.
Although Plymouth buys and takes title to all products bought
from the Respondents, at Plymouth's request and direction the
Respondents make direct deliveries to Budd and Kelsey-Hayes.
The record shows that annually at least $49,000 worth of the
Respondents' products are used in packing and crating goods
for out-of-State shipments by the Budd Company and that
Kelsey-Hayes probably uses directly in interstate commerce
as much as 20 percent of the $84,000 worth of the Respondents'
products which it receives.
We agree with the Trial Examiner's conclusion that the
Respondents are engaged in commerce within the meaning of
the Act. We do not believe, however, that it would effectuate
the policies of the Act for the Board to assert jurisdiction in
this case . The Respondents ' business and the business of its
only customer, Plymouth, are entirely intrastate. As the Re-
spondents' business is not once, but twice removed from
interstate commerce, the volume of their business is immate-
rial. They clearly would be covered by the Board's past juris-
dictional policy with respect to firms doing business with
companies engaged in interstate commerce if they sold to
either Budd or Kelsey-Hayes in amounts exceeding $50,000
annually. The Trial Examiner's finding, that the Respondents'
operations satisfy the Board's jurisdictional criteria because
they ship directly to Budd and to Kelsey-Hayes products
valued in excess of $50,000 annually, is anunwarranted exten-
sion of the Hollow Tree Lumber Companydecision.2 We believe
that there is insufficient impact upon interstate commerce to
warrant our exercise of jurisdiction here.3 We shall, there-
fore, dismiss the complaint.
I The Respondents' request for oral argument is hereby denied as the record, including
the brief and the exceptions, adequately presents the issues and the positions of the parties.
z 91 NLRB 635. However, we do not hereby adopt the Board's ruling in that case as a
permanent policy.
'To the extent that our holding herein is inconsistent with the Board's earlier decision in
National Gas, 99 NLRB 273, that decision is hereby overruled.
BROOKS WOOD PRODUCTS 239
[The Board dismissed the complaint.]
Member Murdock , dissenting:
I emphatically disagree with my colleagues ' conclusion that
there is insufficient impact upon interstate commerce to war-
rant exercise of jurisdiction here.
I do not agree with the majority ' s finding that Respondents'
operations do not come within the reach of category 5 of the
Board's jurisdictional plan or the Hollow Tree case in which
it was first made public . During 1952 Respondents sold ap-
proximately $ 223,000 worth of crating and packing materials
to Plymouth Wood Products and at Plymouth ' s direction
delivered approximately $156,000 worth of these products
directly to the Budd Company and Kelsey-Hayes Wheel Com-
pany. The last - named corporations together ship annually in
excess of $ 43,000,000 worth of automotive parts directly in
interstate commerce from their Detroit plants . The crating
materials such as wooden pallets and separators furnished
by Respondents are used by Budd and Kelsey - Hayes to ship
their products in interstate commerce. More than $65,000
worth of Respondents ' materials are shipped out of the State
by Budd and Kelsey-Hayes with their products . These facts
clearly bring Respondents within the reach of category 5 of
the Board ' s jurisdictional plan which embraces:
Intrastate enterprises furnishing services or materials
necessary to the operation of enterprises falling within
categories 1, 2, 3 or 4 of the plan provided such goods or
services are valued at $50,000 per annum. ( Emphasis
supplied.)
Category 4 of the plan embraces:
enterprises engaged in producing or handling goods
destined for out-of-state shipment or performing services
outside the state, if the goods or services are valued at
$ 25,000 per annum.
There is no question but that Budd and Kelsey - Hayes are both
category 4 enterprises as they ship in excess of $43,000,000
out of the State. Therefore , as Respondents furnish crating
materials "necessary to the operation " of Budd and Kelsey-
Hayes valued in excess of $50,000, they clearly fall within
category 5 of the plan . The Trial Examiner's finding that
Respondents ' operations satisfy the Board's jurisdictional
criteria, far from being an unwarranted extension of the
Hollow Tree doctrine , as suggested by the majority , is instead
squarely in accord with that doctrine as applied by the Board
not only in the National Gas4 case but also in Gaby Iron &
4 99 NLRB 273.
240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Metal Company.5 In the Gaby case, the Board asserted juris-
diction over an Illinois employer who sold $121,000 worth of
scrap iron and steel to brokers located within the State of
Illinois, which was then delivered directly to Illinois plants
of Republic Steel Company which were category 4 enterprises.
The majority admits that if Respondents sold their products
directly to Budd and Kelsey-Hayes they would clearly fall
within category 5 of the Board's jurisdictional plan. But be-
cause Respondents first sell to Plymouth, which transaction
involves only a paper transfer of title to the goods, before
delivery to Budd and Kelsey-Hayes, my colleagues find that
the effect upon interstate commerce of a strike of Respondents'
employees would be somehow less. The majority does not
explain how the mere paper transfer of title can achieve this
result as indeed they cannot. For the fact that Respondents no
longer have title to the goods which they directly deliver to
Budd and Kelsey-Hayes does not and cannot change in any way
the degee of impact on interstate commerce resulting from a
strike of Respondents' employees. The fact remains that if
Respondent cannot deliver crating materials to Budd and
Kelsey-Hayes because of a labor dispute, there will be an
impact on the latter's ability to ship their products out of the
State. As the Supreme Court said in the Fainblatt case:6
The end sought in the enactment of the Statute was the
prevention of the disturbance to interstate commerce
consequent upon strikes and labor disputes induced or
likely to be induced because of unfair labor practices
named in the Act. That these consequences may ensue
from strikes of the employees of manufacturers who are
not engaged in interstate commerce where the cessation
of manufacture necessarily results in the cessation of the
movement of the manufactured products in interstate com-
merce has been repeatedly pointed out by this court.
The Supreme Court went on to point out the immateriality of
considerations of where title to goods lies:
We cannot say, other things being equal, that the tendency
differs in kind, quantity or effect merely because the
merchandise which the manufacturer ships instead of being
his own, is that of a consignee or his customer in other
states. In either case commerce is being obstructed in the
same way and to the same effect.
If it would effectuate the policies of the Act to assert jurisdic-
tion over Respondent if they sold direct to either Budd or
Kelsey-Hayes, as the majority indicates, it effectuates the
513-RC-2311, 97 NLRB No. 229.
6306 U. S. 601(1939).
BROOKS WOOD PRODUCTS 241
policies of the Act precisely to the same extent to assert
jurisdiction over Respondents under existing circumstances.
In my view the dismissal of this case on the stated ground
that there is "insufficient impact upon interstate commerce"
represents not alone a departure from what my colleagues
characterize as the Board ' s "past jurisdictional policy" (a
practice which seems to be recurring with increasing fre-
quency ). To me it also represents a lack of perspective and
realism in appraising and guarding against the possible serious
effect on interstate commerce of a cessation of operations
by this employer who provides necessary crating materials
for the shipment in interstate commerce of automotive products
of Budd and Kelsey - Hayes.
Budd is one of the Nation ' s three leading independent body
manufacturers . Its principal customers include Chrysler
Corporation , Ford Motor Co., Fruehauf , General Motors Corp.,
Kaiser - Frazer Corp., Nash - Kelvinator Corp ., and Studebaker
Corp. Its Charlevoix Avenue plant in Detroit covers 1,955,200
square feet on a 74 -acre site devoted to the production of
automobile body components , wheels , hubs, drums, and brakes
for passenger cars and trucks.? As noted in the Intermediate
Report , its Detroit plant shipped in excess of $ 42,000,000 worth
of products out of State in 1 year.
Kelsey-Hayes manufactures passenger car andtruckwheels,
as well as wheels, hubs , brakes, rims , drums, etc., for
tractors and farm implements . It operates 2 plants in Detroit
and Jackson , Michigan , with a floor area of 1,100,000 square
feet on 50 acres and a daily capacity for making 50,000 wheels.'
In the assembly - line system in use in today ' s automobile
manufacturing industry the vital importance of having the
proper parts on hand at the proper time scarcely needs
laboring. Delay in the timely receipt of parts may mean a
complete stoppage of the assembly line and a cutoff in the flow
of finished automobiles in interstate commerce. Accordingly,
the possible impact of a work stoppage at this Respondent's
operations not only on Budd ' s and Kelsey - Hayes' interstate
shipments but also on the manufacture and flow of countless
automobiles in interstate commerce is evident. It should re-
quire no great amount of imagination to visualize the chain
reaction in the impact of a shutoff in the supply of Respond-
ents' crating materials on Budd ' s and Kelsey ' s shipments of
automotive parts; and then in turn the impact on the production
of automobiles of Budd's and Kelsey's inability to make timely
delivery of essential parts to assembly plants. To some extent
this situation presents a mechanical age illustration of the
old proverb : "For want of a nail the shoe was lost ; for want
of a shoe the horse was lost, etc."
Accordingly , I believe that Respondents ' operations affect
interstate commerce sufficiently to warrant our exercise of
7Moody' s industrials, 1953.
8 Ibid.
242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
jurisdiction in this case, and that reason and logic as well as
past decisions of the Board require us to do so in order to
best effectuate the policies of the Act.
ROBERT H. SNOW, d/b/a AUTO PARTS CO. and ARTHUR J.
SHUMAN. Case No. 19-CA-740. November 30, 1953
DECISION AND ORDER
On April 13, 1953, Trial Examiner Martin S. Bennett issued
his Intermediate Report in the above-entitled proceeding,
finding that the Respondent had not engaged in the unfair labor
practices alleged in the complaint, and recommending that the
complaint be dismissed in its entirety, as set forth in the copy
of the Intermediate Report attached hereto. Thereafter, the
General Counsel filed exceptions to the Intermediate Report
and a supporting brief.
The Board has reviewed the rulings of the Trial Examiner
made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The Board has
considered the Intermediate Report, the exceptions and brief,
and the entire record in the case,' and hereby adopts the
findings, conclusions, and recommendations of the Trial
Examiner with the following additions and modifications:
We agree with the Trial Examiner's conclusion that the
record does not sustain the complaint allegation that the
Respondent violated Section 8 (a) (3) of the Act when it
discharged Shuman. In reaching this conclusion, however, we
find it unnecessary to adopt the various rationales set out
in the Intermediate Report.
It is clear that Shuman's conduct amounted to a refusal
to carry out part of his assigned work task and that the
Respondent released him for such reason and only for such
reason.2 As set forth in the Intermediate Report, on his very
first day on the job as delivery man Shuman complained to
Snow, his employer, that he dislik^d making deliveries to
certain customers of the Respondent where the I.A.M. was
maintaining a picket line. Snow advised him that those deliveries
were necessary, like all others, and that they would have to
be made. The next day Shuman avoided making a similar
delivery through the I.A.M. picket line in the course of his
work by arranging with a fellow employee to make it for him.
Having learned of this, Snow reiterated to Shuman the warning
that he would have to do the work assigned him and this time
iOn motion by the General Counsel the Board remanded the case for further evidence.
The parties thereafter submitted a stipulation of facts in satisfaction of the remand. We
have considered that stipulation as part of the entire case.
2 There is no evidence of antiunion bias. That Snow acted only to preserve efficient opera-
tion of his business is shown by the fact (stipulated by the parties after the hearing) that he
hired a replacement who was willing to make the necessary deliveries without reservation.
107 NLRB No. 78.