The White Sulphur Springs Co.

National Labor Relations Board - Board Decisions

Sep 19, 1949

85 N.L.R.B. 1487 (N.L.R.B. 1949)

In the Matter of THE WI-ITE SULPHUR SPRINGS COMPANY, EMPLOYER
and GREENBRIER FIRE AND POLICE UNION (INDEPENDENT), PETI-
TIONER
Case No. 9-RC-392.-Decided September 19, 19499
DECISION
AND
ORDER
Upon a petition duly filed, a hearing was held before Alan A. Bruck-
ner, hearing officer of the National Labor Relations Board. The hear-
ing officer's rulings made at the hearing are free from prejudicial error
and are hereby affirmed. At the hearing, the Employer moved to dis-
miss the petition on the ground, among others, that it is not engaged
in commerce within the meaning of the Act. For reasons stated here-
inafter, the motion is hereby granted.'
Upon the entire record in this case, the Board finds :
THE BUSINESS OF THE EMPLOYER
The Employer, a wholly owned corporate subsidiary of the Chesa-
peake & Ohio Railroad, operates a resort hotel known as the Green-
brier Hotel, at White Sulphur Springs, West Virginia. The property
is owned by the railroad, but is rented to the Employer on a long-term
lease. The Employer annually purchases supplies outside the State
of West Virginia, valued in excess of $50,000. In addition, it spends
substantial sums of money for advertising in magazines, periodicals,
and other advertising media having national circulation. It main-
tains offices in New York, Chicago, and Washington, for the purpose
of accepting hotel reservations. The Employer also subleases.space
in the hotel to 12 retail establishments, of which 5 are either foreign
corporations or operate other outlets outside the State of West Vir-
IIn view of our disposition of this matter , it is unnecessary for us to pass on the
Employer's further contention that if its operations affect commerce , it is governed by the
Railway Labor Act. 44 Stat. 577; 45 U. S. C. A. 1 51-163, 181-1SS. not by the National
Labor Relations Act.
85 N. L. R. B., No. 228.
1487
1488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ginia. All purchases of the Employer, wherever obtained, are utilized
locally in serving its guests, over 50 percent of whom come from
outside the State.
The Employer contends that it is not engaged in commerce within
the meaning of the Act. Although the Employer's operations are not
wholly unrelated to commerce, it appears that a cessation of this
Employer's operations would have such a remote and indirect effect
on commerce that to assert jurisdiction here would not effectuate the
policies of the Act.'
To assert jurisdiction here would be to reverse Board precedent
untouched since the original Wagner Act was enacted 14 years ago.
We can find no adequate reason to depart from a practice adhered to
administratively by our predecessors and ourselves since 1935. Noth-
ing in the legislative history of the present Act indicates dissatisfac-
tion by the Congress with the Board's long-standing policy. Indeed,
the absence of mention of this industry in the hearings or debates
leading to the 1947 amendments to the original Act indicates a dispo-
sition not to question or disturb the Board's policy.
ORDER
IT Is HEREBY ORDERED that the petition filed herein be, and it hereby
is, dismissed.
MEMBERS REYNOLDS and MURDocK, dissenting :
We find ourselves unable to agree with the conclusion of the majority
that "a cessation of this Employer's operations would have such a
remote and indirect effect on commerce that to assert jurisdiction here
would not effectuate the policies of the Act." On the contrary, it
seems plain that the operations of the Employer do have a direct and
substantial effect upon interstate commerce. Clearly a work stoppage
resulting in a shut-down of this large resort hotel would have an im-
mediate and substantial adverse effect upon the number of revenue
passengers carried by the Chesapeake & Ohio Railroad to and from
the situs of the hotel at White Sulphur Springs, West Virginia ; it
would also have an effect upon the profit and loss statement of the rail-
road, inasmuch as the lease agreement provides that losses sustained
by the Employer are assumed by the railroad, and a major portion of
the net profits are payable to it. The Chesapeake & Ohio Railroad
(an interstate carrier) obviously operates this hotel through a wholly
2 Matter of Olympia Stadium , 85 N. L . R. B. 389.
THE WHITE SULPHUR SPRINGS COMPANY 1489;
owned subsidiary as a method of increasing its passenger traffic
revenue.
The principal reason apparent for the majority's decision dismissing
the petition is the fact that the Board historically has followed a policy
of abnegation with respect to the hotel industry as it likewise formerly
did with respect to the construction industry. Where certain types.
of business are actually essentially local in character and have only
a remote and insubstantial effect upon commerce, we agree with the
wisdom of refraining to exercise the Federal constitutional power to.
the full extent possible, even though such exercise might technically
and legally be sustainable. However, as we have pointed out, the.
instant Employer clearly does not fall within that category. We per-
ceive no reason for rejecting jurisdiction on doctrinaire grounds or
simply to follow custom and sterile precedent which lacks merit in
relation to a particular case. No reason is apparent to us why we
should refuse to assert jurisdiction in a case of the kind before us,
merely because the hotel industry is involved, when the Board asserts
jurisdiction over so many other employers in other industries where
only a very small number of employees are employed and where the
effect of the employer's operations on interstate commerce is far less
substantial than in this case. Nor are we impressed with the major-
ity's negative argument that there is no mention of the hotel industry
in the legislative history of the amended Act; therefore, Congress is
satisfied with the Board's past policy. Surely this does not establish
that Congress would be any the less satisfied if the Board were to
change its policy for good and sufficient reason in particular cases.