Northwest Airlines, Inc.

National Labor Relations Board - Board Decisions

Aug 3, 1943

51 N.L.R.B. 1012 (N.L.R.B. 1943)

In the Matter of NORTHWEST AIRLINES, INC. and INTERNATIONAL
UNION, UNITED AUTOMOBILE, AIRCRAFT & AGRICULTURAL IMPLEMENT
WORKERS OP AMERICA, LOCAL 134, C. 1. 0.
Case No. R-4524
SUPPLEMENTAL DECISION
August 3, 1943
On February 13, 1943, the National Labor Relations Board issued
a Decision and Order 1 in the above-entitled proceeding, dismissing
the petition for investigation and certification of a collective bargain-
ing representative filed by the International Union, United Automo-
bile, Aircraft & Agricultural Implement Workers of America, Local
134, C. I. 0., herein called the Union. On May 31, 1943, the Union
filed with the Board a petition requesting, inter alia, a rehearing.
On May 28, 1943, the Board, acting pursuant to Section 9 (c) of the
National Labor Relations Act, 49 Stat. 449, herein called the Act, and
Article III, Section 3, of National Labor Relations Board Rules and
Regulations- Series 2, as amended, ordered that the proceeding be
reopened and that a further hearing be held, and authorized the
Regional Director to issue notice of further hearing. -
Pursuant to notice, a further hearing was held at Minneapolis,
Minnesota, on June 23 and 24, 1943, before Stephen M. Reynolds,
Trial Examiner. Northwest Airlines, Inc., herein called the Com-
pany, Air Line Mechanics Association, herein called the Association,
St. Paul Trades & Labor Assembly, the intervenor, and the Union
appeared, participated, and were afforded full opportunity to be heard,
to examine and cross-examine -witnesses, and to introduce evidence
bearing on the issues. The Trial Examiner's rulings made at the
hearing are free from prejudicial error and are hereby affirmed.
Oral argument was presented to the Board in Washington, D. C., on
July 22, 1943, all of the parties being represented by counsel, including
the following air carriers appearing as amici oun'iae: American Air=
lines, Inc.; Braniff Airways, Inc.; Chicago and Southern Air Lines,
Inc.; Colonial Airlines, Inc.; Delta Air Corporation; Eastern Air
Lines, Inc.; Inland Air Lines, Inc. ; Mid-Continent Airlines, Inc.;
1 47 N. L. R B. 495.
51 N. L. R. B., No. 159
1012
t
NORTHWEST AIRLINES, INC. 1013
National Airlines, Inc. ; Northeast Airline, Inc. ; Pan-American Air-
ways, Inc.; Pan American-Grace Airways, Inc.; Pennsylvania-Cen-
tral Airlines Corporation; Transcontinental & Western Air, Inc.;
United Air Lines Transport Corporation; and Western Air Lines,
Inc. All the parties, including the amici curiae, filed briefs which
have been considered by the Board.
SUPPLEMENTAL FINDINGS OF FACT
In its original Decision and Order, the Board dismissed the Union's
petition for investigation and certification of a collective bargaining'
representative among the, employees employed at the Company's,
bomber modification project. The Board found that it did not have
jurisdiction over these employees-of a common carrier by air, which
is subject to the Railway Labor Act in its customary carrier activities,
in view of the considerable extent to which the modification project
was integrated with the Company's regular transportation activities,,
and on the further ground that there was no showing' made that" the
National Mediation Board, the agency primarily vested with jurisdic-'
Lion by the terms of the Railway-Labor Act, had declined to assume
jurisdiction over the operation of the bomber modification project.
The further hearing in the instant proceeding was for the purpose
of taking additional testimony with respect to the Union's contention
that since the preceding hearing, the Company had effected a separa-
tion of its modification project from its regular carrier activities to an
extent sufficient to warrant the Board's reversal of its previous decision
so as to accept jurisdiction over the bomber modification project. The
Company and the Association argue that such a separation has not, in
fact, been instituted and reiterate their previous contention that if-an
employer is "in any measure subject" to the Railway Labor Act, then
"he and all his activities are removed from the jurisdiction of the Na-
tional Labor Relations Board."
In our previous Decision we rejected the latter contention of the
Company and the Association, basing our rejection, in part, upon the
decisions of other administrative agencies, as well as of the Courts,
which were persuasive of the view that the terms "carrier" and "em-
ployee" as used in the Railway Labor Act are to be interpreted realis-
tically rather than literally. Since the preceding hearing in this case,
however, the precedent set by the earlier decisions has been consider-
ably weakened by the decision of the United States District Court,
Southern District of New York, in the case of Brittan v. Hudson and
Manhattan Railroad Company, March 23, 1943, 6 Wage and Hour Re-
porter 590, where the Court held that it was "the engagement of the
employer" and not the "nature of the employment" of the employees
of a carrier which should determine the application of the provisions
1014 DECISIONS OF MATIONiAL LABOR RELATIONS BOARD
of the Fair Labor Standards Act where such provisions expressly ex-
empt any employee of a carrier.
In reaching our conclusion, that the modification project is not sub-
ject to our jurisdiction, however, we do not base our decision on the
reasoning in the Brittan case, but rather on the factors which we shall
hereinafter discuss.
As we have indicated above, the Union contends that the changes
instituted by the Company, in the operation of its modification proj-
ect, since the last hearing, have made of the project a separate and
distinct enterprise. We do not agree., Although, the Union argues:
that the construction of two new hangars to house the modification
project's- operations is evidence of such a separation, it is clear that
the were transfer to these hangars of operations previously performed
in part at the Company's regular hangar, and, because of lack of
adequate facilities, in part outdoors, does not, standing alone, indi-
cate the separation claimed by the Union. Nor does the record sustain
the Union's further claim, in support of which it offers the testimony
of a number of minor employees of the Company, who, for the most
part, do not appear to have any functional connection with those
operations concerning which they testified, that the modification proj-
ect's auditing and clerical, engineering and traffic departments have
been removed from kindred functions serving the regular airlina-.
activities. While it appears that some administrative functions, such
as timekeeping, office and personnel management, were previously
controlled jointly for all of the Company's divisions, the fact that
they are now partially confined to the project for project employees
is not in our opinion, convincing proof of a separation of the project,
from the regular activities, since it is evident that these operations
are performed, only in their initial stages at the project and are
thereafter transferred and completed ' at the general offices of the
Company together with similar functions which are part of the
regular divisions. The Union contends that other vital operations
have also been completely segregated from the Company's regular
activities. The record does not support this contention. While it,
appears that there are separate engineering and inspection depart-
ments at the project, the evidence is clear that these departments;
are interrelated with the engineering and inspection departments of
the Company's, regular activities by virtue of the common super-
vision over them, through the chief engineer and chief inspector,
respectively, of the Company's entire system. Traffic control, which
the Union contends is confined wholly to the project, appears to be
merged with traffic control extended over the Company's commercial
divisions through joint regulation by the Army, the Department of
Commerce, and the Company's "universal record" of traffic. While
NORTHWEST AIRLINES, INC. 1015
welding, engine, and sheet-metal overhauling for the project are gen-
erally performed at the project premises, there is evidence that such
operations are also to some extent performed, for the project, at the
Company's regular work shops. Although stock equipment is dis-
tributed for the project at the project premises, we do not see a
measure of separation in this practice, guided, as it appears to be, by
a consideration for efficient administration. For the same reason,
we are not convinced that there is segregation, as claimed by the
Union, in the establishment of separate lunch rooms at the project
premises; in the Company's proposed adoption of new accounting
methods so as to insure more prompt reimbursement from the Govern-
ment; nor in the stamping of Government equipment with an identi-
fying mark.
Under all of the circumstances, we are of the opinion, as before,
that the Company's bomber modification project is so integrated with
its carrier activities as to preclude a finding that the project is a
separate and distinct enterprise.
Another and perhaps a more important factor which influences
our decision that the project is not subject to our jurisdiction is the
fact that the National Mediation Board, which is the agency pri-
marily vested with jurisdiction by the terms of the Railway Labor Act
over the employees of a carrier and which has primary authority to
determine its own jurisdiction, has not been shown to have at any
time declined to assume jurisdiction over the operations here involved.
In addition, while in the previous hearing there was no evidence ad-
duced as to the National Mediation Board's position on the question
of jurisdiction, it appears from the evidence now before us that the
chairman of the National Railway Labor Panel, an agency also
vested with jurisdiction over certain issues involving carriers, has
stated that the employees of the Company's modification project are
subject to the Railway Labor Act. Thus there is indicated a likeli-
hood that if the Union avails itself of the benefits provided for by
the provisions of that Act, it may then be afforded the remedy which
it seeks from this Board. In the event that the Union petitions the
National Mediation Board for investigation and certification of 'a
bargaining representative and that Board-thereupon disclaims juris-
diction, it would not appear to be inappropriate for the Union there-
upon to seek a reconsideration of the issues here involved, since the
'law, like nature, abhors a vacuum. Accordingly, we affirm our previ-
ous decision herein.
C13AIRMAN MiLLis took no part in the consideration of the above
Supplemental Decision.