California Institute of Technology

National Labor Relations Board - Board Decisions

Feb 13, 1953

102 N.L.R.B. 1402 (N.L.R.B. 1953)

1402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CALIFORNIA INSTITUTE OF TECHNOLOGY and INTERNATIONAL BROTHER-
HOOD OF ELECTRICAL WORKERS, LOCAL UNION 11, AFL , PETITIONER.
Case No. 91-RC-2776. February 13, 1953
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, as amended, 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 makes the following
findings :
1. The California Institute of Technology, herein called the Insti-
tute, is a privately endowed, nonprofit, educational institution provid-
ing undergraduate and graduate courses in science and engineering.
In conjunction with its educational instruction, the Institute main-
tains and operates some 200 research projects located both on and off its
campus. The Southern California Cooperative Wind Tunnel, herein
called the Cooperative Wind Tunnel, is the only project involved in
this proceeding.
The Cooperative Wind Tunnel, owned by 5 sponsoring industrial
aircraft companies 1 who originally provided the necessary funds for
its construction and equipment, is operated by the Institute under a
management agreement. The wind tunnel involved here is the newest
and largest of 10 wind tunnels operated by the Institute in connection
with its department of aeronautics and is located 2 miles from the In-
stitute's campus in the city of Pasadena, California. The 9 other wind
tunnels are located on the Institute's campus and are part of the Gug-
genheim Laboratory which was constructed with money granted by
the now defunct Guggenheim Fund.
The Institute contends that, although the Board has the requisite
legal jurisdiction,2 because of the intimate connection between the
Institute's research activities at the Cooperative Wind Tunnel and its
educational program, it would not effectuate the policies of the Act to
assert jurisdiction. In furtherance of its position, the Institute asserts
that its educational program is integrated with its research activities
1 The 5 sponsors are Consolidated-Vultee Aircraft Company , North American Aviation
Company, McDonnel Aircraft Company, Douglas Aircraft Company, and Lockheed Aircraft
Company In addition to the 5 sponsors , other aircraft companies are permitted to use
the facilities upon the same cost basis as the sponsors.
2 The record indicates that the Institute purchased goods In interstate commerce for
the use of the Institute and its projects of a value in excess of $25 , 000 per year. It re-
ceives 1 to 11/4 million dollars per year from its sponsors for the cost of research at the
Cooperative Wind Tunnel , the project involved herein. All the sponsors are engaged in
Interstate commerce . In addition , the Institute receives from the United States Govern-
ment 9% to 10 million dollars each year for research performed for national defense at
the Jet Propulsion Laboratory , another project of the Institute.
102 NLRB No. 137.
CALIFORNIA INSTITUTE OF TECHNOLOGY 1403
by classroom discussions of the results of wind tunnel tests, by utilizing
students 3 as technicians and computers on the project, by providing
facilities for students' use in preparation of their theses, by student
participation in conferences with aircraft companies concerning the
design of models and details of tests, and by allowing students to work
on the project for part-time earnings.
The Cooperative Wind Tunnel is extensively utilized by the five
sponsoring companies and other aircraft companies to test aircraft
models. Prior to the delivery of the model to be tested at the tunnel,
the participating company and the Cooperative Wind Tunnel staff
consult to determine methods and techniques for running the test.
Subsequently, the model is delivered to the project by the company and
is set up for the tests by the project's staff with some participation by
the company. Upon the completion of the tests, the model is brought
back to the company by the company's staff. After the necessary com-
putations are made, the Institute issues an individual report to the
participating company. The Institute receives no royalties on patents
or discoveries resulting from its research.
The cost of operating and maintaining the Cooperative Wind
Tunnel is directly borne by the 5 sponsoring companies and other
industrial users of the project. Budgetary requirements for the oper-
ation of the project are established at annual meetings attended by
the 5 sponsors and the Institute. Two methods of reimbursing the
Institute are employed. Each sponsor and industrial user of the
project is directly billed for all costs, such as salaries and materials,
which can easily be identified with an individual test. In addition,
all other expenditures, not readily identifiable with an individual
test, are prorated among all the sponsors and an hourly rate com-
puted. This hourly rate is then billed to each user of the tunnel for
each test conducted. Moreover, the sponsors guarantee the payment
of all deficits resulting from the operation of the project. The In-
stitute operates the Cooperative Wind Tunnel on a nonprofit basis,
and annually receives from the 5 sponsors 1 to 1'/4 million dollars for
the cost of operations.
The Board has had occasion in the past to review the question
as to whether it would assert its jurisdiction over nonprofit, educa-
tional, charitable, and religious organizations. It has refused to
exempt such nonprofit organizations from the operation of the Act
when the particular activities involved were commercial in nature.4
3 Only graduate engineers are admitted to the aeronautics department of the Institute
as candidates for advanced degrees in aeronautics.
4 Sunday School Board of the Southern Baptist Convention, 92 NLRB 801 (corporation
editing and publishing religious literature ) ; Port Arthur College, 92 NLRB 152 ( college
operating commercial radio station ) ; Illinois Institute of Technology, 81 NLRB 201
(college and affiliated research foundations performing industrial research sponsored by
business concerns ) : Henry Ford Trade School, 58 NLRB 1535, 63 NLRB 1134 ( vocational
1404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Conversely, where the activities involved were noncommercial in na-
ture and intimately connected with the educational activities of the
institution, the Board has refused to assert its jurisdiction.5
Although we are cognizant of the educational benefits to be derived
from the Institute's operation of the Cooperative Wind Tunnel, it
is nevertheless apparent that the Institute's extensive research serv-
ices performed for industrial users have as their purpose the improve-
ment of the products of the aircraft industry. Moreover, the Insti-
tute operates the project under a management agreement on a com-
mercial cost-reimbursement basis.6
In view of the commercial aspects of the research activities con-
ducted at the Tunnel and the impact these activities have on commerce,
which our dissenting colleagues cannot deny, we find that it would
effectuate the policies of the Act to assert jurisdiction herein, not-
withstanding the fact that these research activities form a part of
the Employer's educational program. For this reason, we find, unlike
our dissenting colleagues, that the principle of the Columbia Univer-
sity case is inapplicable.
2. The labor organization involved claims to represent certain
employees of the Institute.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) of the Act.
4. The following employees of the Employer constitute a unit ap-
propriate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act: All maintenance electricians and their
helpers employed at the Employer's Southern California Cooperative
Wind Tunnel project, but excluding all other employees, professional
employees, guards, and supervisors as defined in the Act.
[Text of Direction of Election omitted from publication in this
volume.]
CHAIRMAN HERZOG and MEMBER PETERSON, dissenting :
We disagree with the majority's finding that it would effectuate
the policies of the Act to assert jurisdiction over this Employer, a
nonprofit educational institution. We are convinced that the salutary
school performing necessary services for industrial concern ); Polish National Alliance, 42
NLRB 1375, enfd . 136 F. 2d 175 (C. A. 9, 1943 ), aftd. 322 U. S. 643 (fraternal society
operating insurance business) ; American Medical Association , 39 NLRB 385 (organiza-
tion publishing medical journal , magazine , and pamphlets).
S The Trustees of Columbia University in the City of New York, 97 NLRB 424. In The
Trustees of Columbia University , wherein the petitioner sought a unit of clerical employees
in the libraries of the university , we found that the operation of the libraries by the
university was directly related to the university 's educational function and noncommercial
in nature.
Illinois Institute of Technology, 81 NLRB 201.
COLGATE-PALMOLIVE PEET COMPANY 1405
rule set forth in the Columbia University case is and should be con-
trolling here.
Unlike the majority, we do not believe that the commercial aspects
of the research activities of the Institute's Cooperative Wind Tunnel
project are sufficient to warrant our asserting jurisdiction in the light
of what we consider the intimate relation between these activities and
the admitted educational purposes of the Institute itself. For these
reasons, we would dismiss the petition.
COLGATE-PALMOLIVE PEET COMPANY and INTERNATIONAL CHEMICAL
WORKERS UNION,, LOCAL #15, AFL, PETITIONER . Case No. 35-RC-
644. February 16, 1953
Supplemental Decision , Certification of Representatives, and
Order
On May 15, 1952, pursuant to the Board's Decision and Direction of
Elections 1 issued on April 23, 1952, elections by secret ballot were
conducted by the Regional Director for the Ninth Region among
employees in the respective voting groups to determine whether or not
said employees desired the Petitioner to represent them for the pur-
poses of collective bargaining.
Upon the conclusion of the elections, tallies of the ballots. were
furnished the parties hereto in accordance with the rules and regula-
tions of the Board. The tallies show : (1) That of. approximately 20
eligible voters in voting group A,219 cast ballots, of which 14 were for
the Petitioner and 5 against the Petitioner, and there were no chal-
lenged ballots; (2) that of approximately 26 eligible voters in the
professional voting group B,3 7 cast ballots for inclusion with non-
professional employees, 17 cast ballots against inclusion with the non-
professional employees, and there were 2 challenged ballots; (3) that
of the approximately 26 eligible voters in voting group B, 11 cast
ballots for the Petitioner, 13 cast ballots against the Petitioner, and
there were 2 challenged ballots; and (4) that of approximately 2
eligible voters in voting group C,4 2 cast ballots against the Petitioner.
198 NLRB No. 193.
2 This voting group was composed of all analysts , inspectors, and the special investigator
and material inspector in the Employer 's laboratory at Jeffersonville , Indiana, excluding
clerks, secretaries and stenographers, chemical engineers , and supervisors as defined in
the Act.
a This group was composed of the senior , associate , and junior chemists in the Employer's
laboratory at Jeffersonville, Indiana, excluding clerks, secretaries and stenographers, chem-
ical engineers , and supervisors as defined in the Act.
f This group was composed of the 2 dishwashers in the Employer 's laboratory at Jeffer-
sonville, Indiana, excluding all professional and nonprofessional laboratory employees,
clerks, secretaries and stenographers , chemical engineers , all other employees , and super-
visors as defined in the Act.
102 NLRB No. 143.