Herbert Harvey, Inc.

National Labor Relations Board - Board Decisions

Jun 13, 1966

159 N.L.R.B. 254 (N.L.R.B. 1966)

254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Herbert Harvey, Inc. and Government Service Employees' Union,
Local 536, Building Service Employees International Union,
AFL-CIO, Petitioner. Case 5-RC-51p36. June 13,1966
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9(c) of the National
Labor Relations Act, as amended, a hearing was held before Hearing
Officer William I. Shooer. The Hearing Officer's rulings made at the
hearing are free from prejudicial error and are hereby affirmed. The
Employer and the Petitioner filed briefs with the Board.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Jenkins and Zagoria].
Upon the entire record in this case, the Board finds :
1. Herbert Harvey, Inc., the Employer herein, asserts, first of all,
that the Board does not have jurisdiction of matters involving labor
relations of the World Bank.' Further, the Employer contends that
its own operations are so intimately connected with the World Bank
that the Board should decline to assert jurisdiction over the
Employer. In the alternative, the Employer contends that the build-
ing maintenance employees, sought to be represented by the Peti-
tioner in this proceeding, are not its employees but are employees of
the World Bank.
The record discloses that the Employer is engaged generally in the
business of management and operation of office and apartment build-
ings and general real estate in the District of Columbia. Among its
other operations, the Employer supplies building maintenance serv-
ices to the World Bank pursuant to a contract which was first
executed by the World Bank and Employer in July 1955. This con-
tract has since been renewed each year on its anniversary date, with
appropriate changes in the reimbursement clause and the inclusion
of new buildings acquired by the Bank.2 The contract provides that
the Bank shall pay the Employer a monthly fixed fee and shall
reimburse the Employer for all direct costs incurred in rendering
the services required by the contract.3 The contract requires the
Employer to secure the written approval of the Bank if expenditures
in any month exceed a stated amount.
Reimbursable costs include both labor and supplies. Supplies are
ordered under the Bank's tax exemption certificate and paid for by
1 The International Bank for Reconstruction and Development, located in
Washington, D.C.
2 This contract , inter alia, describes the Employer as an independent contractor.
s The Employer derives in excess of $100,000 annually from this operation
159 NLRB No. 24.
HERBERT HARVEY, INC. 255
the Employer out of an advance received from the Bank. The
Employer obtains prior approval of the Bank for large purchases of
expendable items. All supplies and materials purchased become the
property of the Bank. The Employer pays the employees' wages,
sick leave, and, vacation pay out of the advance from the Bank.
Group hospitalization and workmen's compensation are likewise paid
out of this advance. The Employer makes the employer's contribu-
tion to the social security system and is reimbursed by the Bank for
this expenditure.
The Employer makes all the usual deductions from its employees'
pay such as withholding income tax and the employees' contribution
to the social security system. Its employees are subject to the District
of Columbia Minimum Wage and Safety Regulations . They share
none of the immunities from local and national law enjoyed by
employees of the World Bank.
Applications for employment are made on forms `provided by the
Employer. The Employer's two supervisors check the applicant's
references and, unless there is some matter in the application that
appears to be subject to question, they hire the applicant if the appli-
cant is qualified and needed. The application form is then forwarded
to the Employer's executive vice-president, who may check anything
unusual she finds in the application. If necessary, as in cases where
there may be doubt as to the acceptability of the applicant to the
Bank, the executive vice president obtains clearance for such hiring
from the Bank. On occasion , officials of the Bank have recommended
persons for employment and such persons have been put immediately
on the payroll by the Employer without the usual prehiring checks.
Discharges are recommended by the supervisors and effectuated only
after review both by the Employer's executive vice president and by
the Bank. Discharges recommended by the Bank are carried out
without any review or check.
The work of the employees in the unit is directed by the Employer's
two supervisors. Instructions from the Bank are normally trans-
mitted to the employees through the supervisors although Bank
officials may, on occasion, instruct an employee directly.
Although conditions of employment are thus subject to review and
approval by the Bank, a considerable area of effective control remains
vested in the Employer. Accordingly, we find that the Employer is
an employer of the employees involved herein within the meaning
of Section 2(2) of the Act. Likewise we find that the maintenance
and service activities of the Employer are not so intimately con-
nected with the purposes or operations of the World Bank as to
warrant withholding the exercise of jurisdiction over the business of
the Employer. We find, therefore, that the Employer is engaged in
256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
commerce within the meaning of the Act and that it would effectuate
the purposes of the Act to assert jurisdiction in this proceeding.4
2. The labor organization involved claims to represent certain
employees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Sections
9(c) (1) and 2(6) and (7) of the Act.
4. In accordance with the stipulation of the parties, we find that
the following employees of the Employer constitute a unit appro-
priate for the purposes of collective bargaining :
All charwomen, porters, and elevator operators of the Employer
located at the complex of buildings owned by the International
Bank for Reconstruction and Development, 1818 H Street NW.,
1800 H Street NW., and 718 18th Street NW., Washington,
D.C., but excluding carpet layers, engineers, cafeteria employees,
dining room employees, office clerical employees, guards, and
supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
4 The Board asserts jurisdiction on a plenary basis within the District of Columbia.
M. S. Ginn & Company, 114 NLRB 112; The Westchester Corporation, 124 NLRB 194.
5 An election eligibility list, containing the names and addresses of all the eligible voters,
must be filed by the Employer with the Regional Director for Region 5 within 7 days
after the date of this Decision and Direction of Election. The Regional Director shall
make the list available to all parties to the election. No extension of time to file this
list shall be granted by the Regional Director except in extraordinary circumstances.
Failure to comply with this requirement shall be grounds for setting aside the election
whenever proper objections are filed. Excelsior Underwear Inc., 156 NLRB 1236.
K-Mart, a Division of S. S. Kresge Company ; Gallenkamp Stores
Co.; Mercury Distributing Company and Retail Clerks Union
Local 770, Retail Clerks International Association , AFL-CIO,
Petitioner . Case 31-RC-141. June 13, 1966
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, as amended, a hearing was held on Novem-
ber 29, 1965, before Hearing Officer Norman H. Greer.' The Hear-
ing Officer's rulings made at the hearing are free from prejudicial
error and are hereby affirmed. Briefs were filed by K-Mart, A Divi-
sion of S. S. Kresge Company, hereinafter called K-Mart; by Gallen-
kamp Stores Co., hereinafter called Gallenkamp; by Mercury Distrib-
1 After the hearing and pursuant to Section 102.67 of the National Labor Relations
Board Rules and Regulations and Statements of Procedure , Series 8 , as amended, the
Regional Director issued an order transferring this case to the Board for decision.
159 NLRB No. 28.