should determine jurisdiction based on the over-all operations of the employer." 42

In another case, the Board asserted jurisdiction over a manufacturer of concrete blocks and ready-mixed cement who supplied materials valued at more than $50,000 during a year to two out-of-State contractors who were engaged in constructing a municipal sewer system within the manufacturer's home state.43

(2) Nonprofit and Cooperatively Owned Enterprises

The Board has long followed the policy of asserting jurisdiction over commercial enterprises operated by nonprofit organizations, whether the organizations are religious, fraternal, or educational." The 1947 amendments to the act changed this policy only to exclude from the definition of the term "employer," as used in the act, "any corporation or association operating a hospital, if no part of the net earnings inures to the benefit of any private shareholder or individual." 45

After adoption of the new jurisdictional standards, the question of the Board's assertion of jurisdiction over nonprofit organizations arose again. In a case involving the publishing operations of a church organization which made sales of $250,000 a year in interstate commerce, a majority of the Board said:

The interstate sale and shipment of the Employer's publications is clearly commerce. As this Board and the courts have held, it is immaterial that the Employer may be a nonprofit organization, or that its activities may be motivated by considerations other than those applicable to enterprises which are, in the generally accepted sense, commercial. 46

Similarly, the Board took jurisdiction of a radio station operated by a college," but declined jurisdiction in a case involving employees of a university's libraries.48

The matter of taking jurisdiction over nonprofit fraternal organizations was also raised in a case involving a farmers' organization which

"Paul W. Speer, Inc., cited above. This decision specifically overruled West Virginia Electric Corporation, 90 NLRB 526 (to which Chairman Herzog and Member Reynolds had separately dissented) on this point.

"Hart Concrete Products Co., 94 NLRB No. 225. See also Tampa Sand and Material Co., 91 NLRB 868. "Christian Board of Publications, 13 NLRB 534 (1939) enforced 113 F. 2d 678 (C. A. 8); American Medical Association, 39 NLRB 385 (1942); Polish National Alliance, 42 NLRB 1375 (1942), Jurisdiction affirmed by Supreme Court, 322 U. S. 643 (1944).

44 Section 2 (2).

* Sunday School Board of the Southern Baptist Convention, 92 NLRB 801, Chairman Herzog and Member Reynolds dissented, on the ground that this was not such a commercial activity as the Board should assert jurisdiction over.

Port Arthur College, 92 NLRB 152.

"Trustees of Columbia University, 97 NLRB No. 72 (decided December 11, 1951). In this case, the Board stated that it would not "assert its jurisdiction over a nonprofit, educational institution where the activities involved are noncommercial in nature and intimately connected with the charitable purposes and educational activities of the institution." See also Philadelphia Orchestra Association, 97 NLRB No. 80. 974250-52

was engaged in writing insurance on members' farm property and crops within one State." The organization had $93,000,000 insurance in force and did extensive business with interstate and foreign reinsurance companies. In addition, the organization made purchases of $250,000 a year and sales of $15,000 a year outside the State through associated organizations. In this case, the Board said:

Contrary to the Employer's contention, this Board has never declined to assert jurisdiction over an employer because it is a fraternal organization or a cooperative operated for the benefit of its members. Except for hospitals, the present Act grants no exemption to nonprofit organizations. We have therefore applied the same jurisdictional criteria to fraternal and cooperative organizations as to private businesses operated for profit. We find that the Employer's business operations, whether considered separately or together with those of its satellite organizations, bring it within the coverage of the Act.

The Board likewise has asserted jurisdiction over cooperatively owned public utility companies,50 and a cooperatively owned auction market.51

(3) The Hotel Industry

The Board, throughout its history since 1935, has declined to assert jurisdiction over the hotel industry. The only exception is in the District of Columbia and the Territories, where the statute in effect gives the Board the plenary powers of a local board. 52 There the Board has consistently taken jurisdiction of hotels.53

After amendment of the act in 1947, the question arose as to whether the Board should continue to decline jurisdiction over hotels in the 48 States under the amended act. Citing the precedent then 14 years old, a majority of the Board reaffirmed this policy of declining jurisdiction over hotels as a matter of policy, although finding that hotel "operations are not wholly unrelated to commerce."

After announcement of the new jurisdictional standards, this question arose again. Reconsidering the question in the light of the new standards, a majority of the Board again reaffirmed the policy of declining jurisdiction over hotels in the 48 States. 55 In this case,

49 Oklahoma State Union of the Farmers' Educational and Cooperative Union of America, 92 NLRB 248. 80 Cherokee County Rural Electric Cooperative Association, 92 NLRB 1181; Plymouth Electric Cooperative Association, 92 NLRB 1183; Wheatland Electric Cooperative, Inc., 94 NLRB No. 21.

51 Flemington Auction Market Cooperative Association, Inc., 4-RC-820 (not printed).

52 Roy C. Kelley, 95 NLRB No. 7.

63 Willard, Inc., 2 NLRB 1094 (1937); The Raleigh Hotel Co., 7 NLRB 353 (1938); Westchester Apartments, Inc., 17 NLRB 433 (1939); Rutland Court Owners, Inc., 44 NLRB 587 (1942); Parkside Hotel, 74 NLRB 809 (1947).

The White Sulphur Springs Co., 85 NLRB 1487 (1949). (Members Reynolds and Murdock dissenting.)

Hotel Association of St. Louis, 92 NLRB 1388. (Members Reynolds and Murdock dissenting.) In their dissent, Members Reynolds and Murdock urged particularly that jurisdiction should be asserted on the basis of the Board's policy of asserting jurisdiction over enterprises which "substantially affect the national defense," in view of the hotels' role of supplying lodging for military and civilian personnel traveling on business essential to the national defense effort.

both the employers and the predominant labor organizations representing hotel employees urged that the Board adhere to its past policy of declining jurisdiction.

Conceding that by literal application of the standards the Board would take jurisdiction in this case, the majority declared that "there are other and weightier considerations present in this case." Among these, the majority cited the positive congressional endorsement of the Board's historic policy of declining jurisdiction over hotels, both on the floor of the Senate and in a congressional survey of Board jurisdiction. The majority opinion added:

56

. . Surely this Board did not intend by announcing these standards, and should not now, completely divest itself of power to decline to take jurisdiction upon the basis of other factors, in that rare situation where we are convinced that the Board would otherwise have to sacrifice the evident purposes of Congress in the interest of mere blueprint consistency. . . .

We do not believe that a settled policy, endorsed by all those members of Congress who have recorded an opinion on the subject, should be lightly overturned by the action of this administrative Board. And certainly no persuasive reasons have been presented to warrant overturning it in this case.

Pending a showing, therefore, of any new congressional desire that this Board reverse a long-established policy upon which State Boards, the industry, and its predominant labor organizations have come to rely, we shall continue to adhere to that policy...

The majority cited Senator Taft's statement of August 30, 1949, on the floor of the Senate that "In my opinion the Act was never intended to cover the hotel industry. . ." and the Report of the Committee on Expenditures (1948), House Report No. 2050, 80th Congress, 2d Session.

The Filing Requirements

THE act requires that a labor organization file certain documents

and statements, including a non-Communist affidavit from each of its officers, and furnish its members with annual financial reports in order to use the processes of the Board in any type of case.1

Absent such compliance, the act forbids action upon different types of cases at different stages. In an unfair labor practice case, it forbids the issuance of a complaint based upon a charge filed by a union which has not complied. In a representation case, it forbids investigation of a question of representation "raised by a labor organization" which has not complied. In a union-shop casebefore the 1951 amendment-it forbade that any petition for a unionshop authorization poll from a noncomplying union should be "entertained." The 1951 amendment abolished the requirement of the union-shop authorization poll, but a labor organization still must comply with the filing requirements in order to make a valid unionshop agreement.*

1. Filing of Charges After Compliance

Except for the impact of the Supreme Court's Highland Park decision, which is discussed in the next section, only one major question involving the filing requirements arose during the 1951 fiscal year. This was the question of whether the act relieved an employer of the duty to bargain with a union which is the choice of a majority of employees, but which has not yet met the filing require

1 Sec. 9 (f), (g), and (h).

However, this does not prevent a noncomplying labor organization from being a defendant to an unfair labor practice charge or from being decertified as a bargaining representative. Chicago Newspaper Publishers Association (Chicago Typographical Union No. 16, et al.), 86 NLRB 1041 (1949), unfair labor practice; Harris Foundry & Machine Co., 76 NLRB 118 (1948), decertification. See also Hercules Powder Co., 89 NLRB 52 and Sterling Tool & Mfg. Co., 89 NLRB 142 (1950).

This applies equally to representation petitions filed by an employer, because the act permits the filing of such a petition only after a labor organization or individuals acting on behalf of employees has made a claim to represent the employees. See Herman Loewenstein, Inc., 75 NLRB 377 (1947).

Public Law No. 189, approved by the President October 22, 1951. See appendix C, Text of Amended Act. The amended act still provides for deauthorization polls to determine whether employees wish to rescind their bargaining agents' authority to make a union-shop agreement.

ments at the time of its request to bargain. Originally, the Board held that, in such a case, the union could not bring a charge of refusal to bargain against the employer after the union had filed."

However, section 8 (a) (5) of the act states:

It shall be an unfair labor practice for an employer to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 9 (a).

Section 9 (a) provides:

Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment . . . [subject only to certain provisos regulating the right of individual employees to present grievances].

.

6

In regard to unfair labor practices, section 9 (f), (g), and (h) provide that " .. no complaint shall be issued pursuant to a charge made by a labor organization . . ." unless that organization has filed its annual reports and other data required and ". . . unless there is on file with the Board an [non-Communist] affidavit executed contemporaneously or within the preceding twelve-month period by each officer of such labor organization and the officers of any national or international labor organization of which it is an affiliate or constituent unit . . . Upon reexamination of this statutory scheme and the intent of Congress in establishing the filing requirements, a majority of the Board reversed the earlier ruling. The majority held that a noncomplying majority union whose request for bargaining was refused by an employer might later make its filings and bring a charge of refusal to bargain against the employer, on the basis of his refusal to negotiate at the time when the union had not yet filed. However, one point not ruled upon in this case was whether the Board would find a refusal to bargain if the employer had contemporaneously asserted the union's noncompliance status as grounds for his refusal to bargain. Chairman Herzog proposed that it should not be held a violation in such cases, if the employer notified the union at the time of the request to bargain that its demonstrated noncompliance was the reason for the employer's refusal to negotiate. The two other members of the majority-Board Members Houston and Stylesdeclined to pass upon this point, saying that it was not presented to the Board by this case. The employer in this case had not asserted noncompliance as the basis of his refusal to bargain until the case

Andrews Co., 87 NLRB 379 (1949).

New Jersey Carpet Mills, 92 NLRB 604 (Members Reynolds and Murdock dissenting). This case is discussed briefly in the Fifteenth Annual Report, page 117, footnote 56a.