Building Service Employees Int'l Union Local 6

National Labor Relations Board - Board Decisions

Aug 18, 1960

128 N.L.R.B. 714 (N.L.R.B. 1960)

714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board in Southwest Hotels, Inc.,6 a hotel chain case where the Board's gross
-annual business standard of $500,000 for this industry was met, held that "legal
jurisdiction must also be shown, that is, that the Respondent is "in commerce"
within the meaning of the Act which means some business must be done across State
lines. The Board stated:
Although Southwest concedes that our jurisdictional standard is met in the
case of the Marion and Lafayette hotels, it nevertheless contends that the
Board is precluded from asserting jurisdiction because of a lack of proof on
these records that the necessary legal jurisdiction, that which is predicated on a
finding that the Employer's activities "•affect commerce," can be established.
The distinction and difference between the Board's self-imposed, discretionary
jurisdictional standards and the jurisdictional requirements imposed by the Act
and the Constitution is fully recognized by the Board. Many of our jurisdic-
tional standards already embody the conclusion that the Board's legal jurisdic-
tion has been proved, since they are based on a substantial movement of goods
and services across State lines. However, those standards which are stated
exclusively in terms of gross volume of business (among which is the hotel
standard) serve only to establish the level below which the Board believes that
it would not effectuate the policies of the Act to assert jurisdiction. It is there-
fore always to be understood that before we apply our gross volume jurisdic-
tional standards to assert jurisdiction, the record must conclusively demonstrate
the existence of legal jurisdiction. Thus, in this case, as in all hotel cases, we
must be satisfied on the basis of the, record before us that the operations of the
Employer "affect commerce."
It is unlikely that an enterprise meeting our volume of business standard
would not affect commerce, since that phrase indicates the congressional intent
to exercise the fullest possible Federal jurisdiction, but the possibility never-
theless must be reckoned with. We must therefore base our assertion of juris-
diction in hotel cases on probative evidence rather than on any common under-
standing that the manufacture and distribution of the hundreds of items con-
sumed and utilized in the operation of a .commercial hotel necessarily affects
interstate commerce.
Although, the General Counsel alleges in the complaint that the Respondent
"purchased and caused to be transported to its store in Michigan, directly from
points located outside the State of Michigan, a substantial amount of meats, meat
products and groceries," this allegation: has been denied by Respondent in its answer.
In such a posture, some proof must be made of legal or statutory jurisdiction, that is,
that the employer involved is engaged in commerce or that his operations affect
commerce within the meaning of. Section 2(6) and 2(7) of the National Labor Rela-
tions Act, as amended, in addition to.a showing that the relevant gross volume test
has been satisfied. In other words, application of standards stated exclusively in
terms of gross volume of business depends on an independent showing of legal or
statutory jurisdiction showing that the employer's operations "affect commerce" and
therefore, legal or statutory jurisdiction exists. Since such proof of legal or
statutory jurisdiction, supra , was not introduced by the General Counsel, it is
recommended, based upon the above findings of fact,and conclusions of law, that
the complaint herein against the Respondent, Willard's Shop Rite Markets, Inc., be
dismissed.
9126 NLRB 1161.
Building Service Employees International Union Local 6, AFL-
CIO [Ranke Building ] and Clarence Hein . Case No. 19-CB-
706. August 18, 1960
DECISION AND ORDER
Upon charges duly filed by Clarence Hein, an individual, the Gen-
eral Counsel of the National Labor Relations Board, by the Regional
Director for the Nineteenth Region, issued a complaint dated April
128 NLRB No. 80.
BUILDING SERVICE EMPLOYEES INT'L UNION LOCAL 6 715
26, 1960, against Building Service Employees International Union
Local 6, AFL-CIO, herein called the Respondent. The complaint
alleged that Respondent had engaged in and was engaging in certain
unfair labor practices within the meaning of Section 8(b) (1) (A)
and (2) of the National Labor Relations Act, as amended. Copies
of the charge, complaint, and notice of hearing before a Trial Ex-
aminer were duly served upon the Respondent and the Charging
Party.
With respect to the unfair labor practices, the complaint alleges, in
substance, that Respondent caused and attempted to cause the Ranke
Building, herein called the Employer, to discriminate against em-
ployee Clarence Hein in violation of Section 8 (a) (3) of the Act.
Respondent's answer admits certain jurisdictional and factual alle-
gations of the complaint, but denies the commission of unfair labor
practices.
On April 27, 1960, all parties to this proceeding entered into a
stipulation of facts, and on the same date jointly moved to transfer
this proceeding directly to the Board for findings of fact, conclusions
of law, and issuance of decision and order. The motion states that the
parties have waived their rights to a hearing before a Trial Ex-
aminer, and to the issuance of an Intermediate Report. The motion
also provides that the charge, complaint, answer, and stipulation of
facts constitute the entire record in the case.
On May 12, 1960, the Board granted the parties' motion to transfer
the case to the Board. A brief was thereafter filed by the Respondent.
Upon the basis of the parties' stipulation of facts, Respondent's brief,
and the entire record in the case, the Board' makes the, following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Ranke Building, herein called the Employer, operates a mercantile
and office building in Seattle, Washington. It is a member of the
Building Owners and Managers Association of Seattle, herein called
the Association, comprising approximately 45 to 50 mercantile and
office buildings in the Seattle, Washington, metropolitan area. Since
1937, the Association has represented its members in a single, multi-
employer unit in collective-bargaining negotiations with Respond-
ent. We find that the members of the Association, including the Em-
ployer, constitute a single employer for jurisdictional purposes.2
The parties stipulated that members of the Association receive gross
revenue from the operations of their buildings in excess of $100,000
'Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as
amended, the Board has delegated its powers in connection with this case to a three-
member panel [ Members Rodgers , Jenkins, and Fanning].
2 Stiemons Mai.lang Service, 122 NLRB 81.
716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
annually, of which at least $25,000 is received from tenant firms
making sales in excess of $50,000 annually to customers located out-
side the State of Washington. Respondent admits, and we find, that
the Association, including the Employer, is engaged in commerce, and
that it will effectuate the policies of the Act to assert jurisdiction
herein.'
H. THE LABOR ORGANIZATION. INVOLVED
Building Service Employees International Union Local 6, AFL-
CIO, is a labor organization as defined in Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
In August 1958, Clarence Hein, the Charging Party, was hired by
the Employer as a building and maintenance employee. Thereafter,
on June 9, 1959, Respondent executed a collective-bargaining agree-
ment with the Association, covering building and maintenance em-
ployees of members of the Association. This agreement was effec-
tive from May 1, 1959, to May 1, 1961, and, as set forth in the parties'
stipulation, provided in article I, paragraph 2, that:
Any new employee covered by this agreement who is not already
a member of the Union must, on or before thirty-one (31) days
from date of his employment become a member of the Union and
shall maintain continuous good standing in the Union for the
duration of his employment under this agreement.
In September and October 1959 and February 1960, Hein was noti-
fied by the Respondent and the Employer of the necessity of be-
coming a member of the Respondent in order to continue employment
with the Employer. On March 15, 1960, the Respondent requested
the Association to effectuate the discharge of Hein because he had
failed to become a member of Respondent. On March 15, 1960, the
Employer advised Hein that he was terminated as of that date unless
he "straightened out his membership status with the Respondent."
On March 16, 1960, Hein made an unqualified tender of his dues and
initiation fees to the Respondent, which the Respondent refused to
accept. On March 23, 1960, the Employer discharged Hein.
We find on the above facts that Respondent violated Section
8(b) (2), as alleged. Hein's discharge on March 23, 1960, was ad-
mittedly the result of Respondent's March 15, 1960, notification to the
Employer, through the Association, that Hein had failed to become
a member of Respondent. However, we find nothing in the contract
that would impose such a requirement of membership on Hein, and
therefore nothing which would justify Respondent's request for
Hein's discharge because of alleged membership delinquency. On
the contrary, as set forth in the stipulation, the contract requires only
s M stietoe Operating Company, 122 NLRB 1534.
BUILDING SERVICE EMPLOYEES INT'L UNION LOCAL 6 717
that certain new employees become members of Respondent. Hein
was an old nonmember employee, having been hired some 9 months
prior to the contract's effective date. Accordingly, as Hein was not
required to become a member of Respondent under the terms of the
parties' contract, we find that the Respondent's causation of Hein's
discharge on March 23, 1960, violated Section 8(b) (1) (A) and (2)
of the Act.'
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above,
occurring in connection with its operations as described in section I,
above, have a close, intimate, and substantial relation to trade, traffic,
and commerce among the several States, and tend to lead to labor
disputes burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair
labor practices, we shall order that it cease and desist therefrom and
that it take certain affirmative action designed to effectuate the policies
of the Act. As we have found that Respondent caused the discrimi-
natory discharge of Clarence Hein by the Employer, we shall order
that the Respondent notify Hein and the Employer, in writing, that
it has withdrawn its objection to Hein's employment by the Employer.
We shall also order that the Respondent make Hein whole for any
loss of pay he may have suffered by reason of the discrimination
against him, by payment to him of a sum of money equal to that
which he normally would have earned as wages from the date of his
discharge to 5 days after the Respondent serves written notice upon
the Employer of its withdrawal of objections to Hein's employment,
less his net earnings, if any, during such period. The backpay shall
be computed in accordance with the formula set forth in F. W. Wool-
worth Company, 90 NLRB 289.
CONCLUSIONS OF LAW
1. Building Service Employees International Union Local 6, AFL-
CIO, is a labor organization as defined in Section 2(5) of the Act.
2. By causing, and attempting to cause, the Employer to discharge
Clarence Hein, the aforementioned labor organization, the Respond-
ent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (b) (2) of the Act.
3. By the aforesaid conduct, Respondent has restrained and co-
erced employees of the Employer in the exercise of the rights under
*See Nordberg -Selah Fruit Inc., et al., 126 NLRB 714; New Jersey Bell Telephone
Coinpany, 106 NLRB 1322 , 1325, enfd . 215 F. 2d 835 ( CA. 2). In making this finding
within the confines of the General Counsel's complaint , we do not pass on the validity or
invalidity of Respondent 's contract , except insofar as it fails to provide a basis for Hein's
discharge.
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 7 of the Act, and has thereby engaged in and is engaging in
unfair labor practices within the meaning of Section 8 (b) (1) (A)
of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 ( 6) and (7) of
the Act.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Building Service Em-
ployees International Union Local 6, AFL-CIO, its officers, repre-
sentatives, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Causing or attempting to cause the Employer, or any other
employer member of the Building Owners and Managers Association
of Seattle, to discriminate against employees in violation of Section
8 (a) (3) of the Act, as amended.
(b) In any like or related manner restraining or coercing employees
of the Employer, or any other employer member of the Building
Owners and Managers Association of Seattle, in the exercise of the
rights guaranteed in Section 7 of the Act, except to the extent that
such rights may be affected by an agreement requiring membership
in a labor organization as a condition of employment as authorized
in Section 8 (a) (3) of the Act, as amended.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Notify Clarence Hein and the Employer, in writing, that it
withdraws its objection to Hein's employment and requests the Em-
ployer to offer him immediate and full reinstatement, without preju-
dice to his, seniority or other rights and privileges.
(b) Make whole Clarence Hein for any loss of earnings suffered as
a result of the discrimination against him in the manner set forth in
the section herein entitled "The Remedy."
(c) Post at its business offices and meeting places in Seattle, Wash-
ington, copies of the notice attached hereto marked "Appendix." 5
Copies of said notice, to be furnished by the Regional Director for
the Nineteenth Region, shall, after being duly signed by an authorized
representative of the Respondent, be posted by Respondent immedi-
ately upon receipt thereof, and be maintained by it for a period of 60
consecutive days thereafter, in conspicuous places, including all places
where notices to members are customarily posted. Reasonable steps
shall be taken by the Respondent to insure that the said notices are
not altered, defaced, or covered by any other material.
In the event that this Order is enforced by a decree of a United States Court of
Appeals , there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
BUILDING SERVICE EMPLOYEES INT'L UNION LOCAL 6 719
(d) Mail to the Regional Director for the Nineteenth Region
signed copies of the notice attached hereto marked "Appendix," for
posting at the offices of the Employer, and other employer members
of the Association, said companies willing, in places where notices
to the companies' employees are customarily posted.
(e) Notify the Regional Director for the Nineteenth Region, in
writing, within 10 days from the date of this Order, what steps Re-
spondent has taken to comply herewith.
APPENDIX
NOTICE TO ALL MEMBERS OF BUILDING SERVICE EMPLOYEES INTER-
NATIONAL UNION LOCAL 6, AFL-CIO; TO ALL EMPLOYEES OF RAN]E
BUILDING; AND TO ALL EMPLOYEES OF MEMBERS OF BUILDING OWNERS
AND MANAGERS ASSOCIATION OF SEATTLE
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT cause or attempt to cause the Employer, or any
other employer member of the Building Owners and Managers
Association of Seattle, to discriminate against employees, in vio-
lation of Section 8 (a) (3) of the Act, as amended.
WE WILL NOT in any like or related manner restrain or coerce
employees of the Employer, or any other employer member of
the Building Owners and Managers Association of Seattle, in the
exercise of the rights guaranteed in Section 7 of the Act, except
to the extent that such rights maybe affected by an agreement
requiring membership in a labor organization as a condition of
employment, as authorized in Section 8(a) (3) of the Act, as
amended.
WE HAVE notified Clarence Hein and Ranke Building, in
writing, that we withdraw our objection to Hein's employment
and request the Employer to offer him immediate and full rein-
statement, without prejudice to his seniority or other rights and
privileges.
WE WILL make whole Clarence Hein for any loss of earnings
suffered as a result of the discrimination against him.
BUILDING SERVICE EMPLOYEES INTERNA-
TIONAL UNION LOCAL 6, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.