767 Opinion of FRANKFURTER, J. appears that the memorandum referred to was never prepared and that no subsequent understanding was reached as to such concurrent jurisdiction. In practice, this does not seem to have been a problem, except in the situation discussed below, since the State Board has by and large confined its activities to the businesses detailed in the letter of July 12 and the National Board in turn has left this field open to the State Board. The problem of socalled "concurrent jurisdiction" has arisen in recent months because, following the National Board's decision in Matter of Maryland Drydock Company, 49 N. L. R. B. 733, a number of labor organizations have filed election petitions with the State Board which they knew would not be entertained by the National Board. (See the second paragraph of this memorandum, above, concerning the conference of January 9, 1945, in Washington.) Prior to the Maryland Drydock case, the State Board, it is understood, had refrained from entertaining cases involving large interstate manufacturers and the National Board had asserted exclusive jurisdiction over such employers. At the conference of April 20 the representatives of the National Board pointed to the recent decision in the Packard case and suggested that the State Board should adhere to its general policy of leaving all cases involving large manufacturing establishments doing interstate business to the National Board. The impracticability of both Boards intermittently asserting jurisdiction over the same employer was emphasized, and in addition the question was raised whether under the Federal Constitution the State Board could lawfully enforce any requirement against such employers which was inconsistent with or which imposed restraints in addition to those enforced by the National Board. The representatives of the New York Board agreed that cases of this type presented a legal problem but were of the view that it was advisable Opinion of FRANKFURTER, J. 330 U.S. for the State Board to entertain election petitions for units of supervisory employees where it was doubtful whether the National Board would proceed with the case were it filed with the latter Board. The representatives of the New York Board pointed to their obligation to contribute to the maintenance of industrial peace within the borders of New York State and recalled a provision of the New York Constitution which guarantees organizational rights to all employees. The representatives of the latter Board agreed, however, that their officials should not reach out for cases of this character, involving large interstate manufacturers, and that they would keep the National Board advised as to all such cases they decided to entertain. Thus, no broad understanding was reached on this score, both Boards reserving their respective positions with regard to petitions for units of supervisory employees and other petitions involving large interstate manufacturers. It was believed that it would be helpful to the work of both Boards if lists of cases entertained within the State were periodically exchanged. The details of this were left to be worked out. NEW YORK STATE LABOR RELATIONS BOARD, Honorable J. WARREN MADDEN, National Labor Relations Board, Washington, D. C. DEAR MR. MADDEN: We wish, in the first place, to thank you and your colleagues for your warm reception of last Wednesday. It is gratifying to know that we can look forward to such wholehearted cooperation from your Board and its staff. We will gladly reciprocate. As requested, we outline our recollection of the understandings reached. So far as concurrent jurisdiction is 767 Opinion of FRANKFURTER, J. concerned, we assume that even a tentative understanding must await mutual study of the memorandum which Mr. Fahy is now preparing. Unless there are unusual circumstances, the New York State Labor Relations Board will assume jurisdiction over all cases arising in the following trades and industries, without clearing, except as a matter of record, with the National Board's officials: 1. Retail stores, 2. Small industries which receive all or practically all raw materials from within the State of New York, and do not ship any material proportion of their product outside the State, 3. Service trades (such as laundries), 4. Office and residential buildings, 5. Small and clearly local public utilities, (this includes local traction companies, as well as gas and electric light corporations), 6. Storage warehouses, 7. Construction operations, 8. Other obviously local businesses. Clearance is certainly going to be required in the case of industries where the raw materials or most of them come from without the State, but the product is not shipped beyond the borders of New York. (The question here is as to the breadth of application of the "come to rest" doctrine of the Schechter case.) You are familiar, of course, with Section 715 of our statute, part of which reads as follows: "Application of article. The provisions of this article shall not apply to the employees of any employer who concedes to and agrees with the board that such employees are subject to and protected by the provisions of the national labor relations act or the federal railway labor act...". The New York State Board will undoubtedly take the position that the Opinion of FRANKFURTER, J. 330 U.S. words "agrees with" contemplate the necessity of our Board's agreeing with the employer that his employees are subject to the national statute, and that no employer can by unilateral action select his jurisdiction. This however, does not solve all of the problems created by the Section, since it is clear that even the agreement of this Board with the employer will not necessarily bestow federal jurisdiction under the Constitution. Presumably every time such a concession is proffered by an employer, our Board will have to clear with the National Board officials in the same way it would clear with them if no such concession were made. It is our understanding that we should clear on all questions of jurisdiction with the Regional Directors in New York City and Buffalo in the first instance, and that you will instruct your Directors to reciprocate by clearing with us all doubtful cases which first come to their attention. Whenever this Board and either of your Regional Directors find themselves unable to agree, the matter will be taken up with you at once. We would appreciate knowing that your recollection and understanding of the above are in accord with our own. Very sincerely yours, s/ John P. Boland (Dr.) JOHN P. BOLAND, Chairman. NATIONAL LABOR RELATIONS BOARD MINUTES OF AUGUST 16, 1946 An informal inquiry was made to the Board by United Financial Employees Association asking whether the Board would entertain a Section 9 representation petition on behalf of the employees of Harris Upham and Company, a New York brokerage house. The Board was also 767 Opinion of FRANKFURTER, J. advised that similar petitions were contemplated for the employees of a number of similar New York brokerage houses. The Board concluded that it would not, at this time, entertain a petition filed on behalf of the employees of Harris Upham and Company or other such brokerage houses because of budgetary and other administrative considerations. The Board further concluded that, in view of this disposition, it had no objection to having the State Labor Relations Board of the State of New York entertain such petitions filed under the State Act. Dated at Washington, D. C. August 16, 1946. Donn N. Bent DONN N. BENT, Approved: s/ P.M. H. s/ J. M. H. Certified to be a true and correct copy. s/ Donn N. Bent, DONN N. BENT, Executive Secretary. |