Hotel Association of St. Louis

National Labor Relations Board - Board Decisions

Jan 17, 1951

92 N.L.R.B. 1388 (N.L.R.B. 1951)

In the Matter of HOTEL ASSOCIATION OF ST. Louis, EMPLOYER and IN-
TERNATIONAL UNION OF OPERATING ENGINEERS , LOCALS 2, 2A, 2B,
2C, AFL, PETITIONER
Case No. 14-RC-8.99.-Decided January 17, 1951
DECISION AND ORDER
• Upon a petition duly filed, a hearing was held before Harry G:
Carlson, hearing officer. The hearing officer's rulings made at the
hearing are free from prejudicial error and are hereby affirmed. At
the hearing, the Employer moved to dismiss the petition on the ground,
among others, that it is not engaged in commerce within the meaning
of the Act. For the reasons stated hereinafter, the motion is hereby
granted.'
On November 9, 1950, at Washington, D. C., the Board heard oral
argument, in which all parties participated.2
Upon the entire record in this case, the Board finds :
The business of the Employer :
The Hotel Association of St. Louis is a voluntary association of 22
hotels located in St. Louis, Missouri. Sixteen of the 22 hotels have
designated the Association as their agent for the purpose of collective
bargaining.' During 1949, the Employer's members' collectively did
an aggregate business of over $15,000,000. Of $6,800,000 received
from room rentals, over $2,400,000 was received from guests who carne
from outside the State of Missouri.
' In view of our disposition of this matter , it is unnecessary to pass upon the validity
of the other contentions of the Employer as grounds for dismissal of the petition.
2 As joint contractual representative , Local Joint Executive Board of the Hotel and
Restaurant Employees International Alliance and. Bartenders International League of
America ; Hotel and Restaurant Employees & Bartenders International Union ; Waiters,
Local No. 20; Waitresses, Local Union No. 249 ; Bartenders, Local Union No. 51; Cooks &
Pastry Cooks , Local Union No. 26 ; Miscellaneous Hotel Employees , Local Union No. 430 ;
Building Service Employees Union, Local 50 E ; and International Brotherhood of Firemen
and Oilers , Local No . 6, AFL , intervened and participated in the oral argument as well as
the hearing . They are referred to below as the Intervenors.
3 Those 16 hotels are : Jefferson , Lennox , Mayfair , Sheraton , Statler, Fairmont , Majestic,
Warwick, Claridge , De Soto, Fairgrounds , Gatesworth ,, Kings-Way , Mark Twain , Melbourne,
and Roosevelt . Four are members of interstate chains.
' Consistent with well -established policy , we treat the Association of 16 Employers
involved herein as a single enterprise and as the `.`Employer " in passing upon this jurisdic-
tional issue . See Indianapolis Cleaners and Launderers Club, 87 NLRB 472 and cases
cited therein..
92 NLRB No. 21.5 .
1388
HOTEL ASSOCIATION OF ST. LOUIS 1389
During 1948, supplies and equipment purchased by the Employer
cost $6,300,000. Of this amount, over $800,000 was paid for supplies
and equipment shipped to the hotels directly from points outside the
State of Missouri. The remainder was purchased within the State,
of which an undetermined amount originated outside the State of
Missouri. Among the purchases known to have originated outside
the State of Missouri, although, locally obtained, were meats and food
from Armour & Company exceeding $97,000, and coal in an amount
exceeding $50,000. The Employer stipulated that approximately 65
percent of the purchases of liquor and cigarettes, which totaled
more than $500,000, originated outside the State of Missouri. All
purchases of the Employer, wherever obtained, are utilized locally in
serving the hotels' guests.
Both the Employer and the Intervenors, the predominant labor
organization in the hotel industry, urge that the Board adhere to
past precedent by declining to exercise jurisdiction here. We think
that their joint contention is entitled to great weight.
For the purpose of clarifying and defining "where the difficult line
can best be drawn," the Board recently announced that it would
utilize certain standards-many of them arithmetric-as a guide in
determining whether or not to exercise jurisdiction in cases where
earlier precedent had sometimes appeared uncertain. We pointed
out at the time that these standards reflected, "in large measure, the.
results reached in the Board's past decisions disposing of similar
jurisdictional issues. " Were we to judge this case by those stand-
ards alone, jurisdiction should be exercised here. In our opinion,
however, there are other and weightier considerations present in this
case. Surely this Board did not intend by announcing these stand-
ards, and should not now, completely divest itself of power to decline
to take jurisdiction upon the basis of other factors, in that rare situa-
tion where we are convinced .that the Board. would otherwise have
to sacrifice the evident purposes of Congress in the interest of mere
blueprint consistency.
As was said in the majority opinion in the Greenbrier Hotel case,6
"nothing in the legislative history of the present Act indicates dissatis-
faction by the Congress with the Board's long-standing policy," T
S The cases which set forth these criteria were WBSR , Inc., 91 NLRB 630 ; W. C. King
d/b/a Local Transit Lines, 91 NLRB 623 ; The Borden Company , Southern Division, 91
NLRB 628 : Stanislaus Implement and Hardware Company , Limited , 91 NLRB 618 ; Hollow
Tree Lumber Company, 91 NLRB 635; Federal Dairy Co., Inc., 91 NLRB 638; Dorn's House
of Miracles, Inc., 91 NLRB 632 The Rutledge Paper Products , Inc., 91 NLRB 625; and
Westport Moving and Storage Company , Crate Making Division. 91 NLRB 902.
U The White Su lphur Springs Company, 85 NLRB 1487 (1949).
7 See last two paragraphs of the opinion of the Supreme Court of the United States in
N. L. R. B. v. Gullett Gin Company, Inc., 340 U. S. 361.
1390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
running back to 1935, not to assert jurisdiction over hotels. This
interpretation of congressional intent is borne out by the opinion ex-
pressed on the floor of the Senate on August 30, 1949,8 when, upon
questioning by Senator Pepper, Senator Taft said, without opposition
being voiced by any other senator that :
... The Taft-Hartley law did not change in any way the
language providing for the jurisdiction of the Board, or the gen-
eral definition of interstate commerce . . . It was not my inten-
tion in 1947, nor do I believe it was the intention of other members
of the Committee on Labor and Public Welfare, to broaden or
-extend the jurisdiction of the Board in that respect. In fact,
I feel very strongly that it should not be done. . . . A hotel per-
forms its service within four walls. It ships nothing into com-
merce. It produces no goods for commerce. In my opinion the
Act was never intended to cover the hotel industry... .
This expression of Senate views coincides exactly with the views set
forth by those members of the House of Representatives who recently
had occasion to inquire into and comment officially upon the same
sirbj ect e
We have carefully reexamined the Board's policy of not exercising
jurisdiction over the hotel industry, in the light of the record and of
the position of the parties as set forth in the briefs and oral argument
in this case. We do not believe that a settled policy, endorsed by all
those members of Congress who have recorded an opinion on the sub-
ject, 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. Indeed, by doing so we would
contribute to uncertainty, not to that certainty toward which the
earlier decisions were directed and to which our colleagues allude.10
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. Although we do not
find, as originally urged by the Employer, that it is not engaged in
commerce within the meaning of the Act, we shall, consistent with past
precedent, decline to assert jurisdiction here.
B Congressional Record, 81st Congress , First Session, pages 1.2,697 and 12,698. ,
9 Hearings and Report of the Committee on Expenditures ( 1948 ) ; House Report No.
2050, 80th Congress , 2d Session.
1DThe references in the dissenting opinion to the Westport Storage case ( 91 NLRB
902), and to the hotel industry as an enterprise affecting national defense, would perhaps
be more impressive if the Hotel Gazette-hardly an official document-upon which our
colleagues rely were in the record, so that its significance in this context could have been
explored by the parties.
HOTEL ASSOCIATION OF ST. LOUIS 1391
ORDER
IT IS HEREBY ORDERED that the petition filed herein be and it hereby
is dismissed.
MEMBERS REYNOLDS and MURDOCK, dissenting :
We would assert jursidiction in this case. The Board is confronted
with a petition involving an employer association comprising sub-
stantially all the important hotels of a great industrial city. Its
members did in excess of $15,000,000 worth of business in a single
year, of which $2,400,000 represented room rentals paid by out-of-
State guests. Purchases of supplies and equipment exceeded $6,-
300,000 in 1948; of this more than $800,000 in amount was imported
directly from outside Missouri while substantial additional amounts
originated outside. Several of the member hotels are units of 3 large
multistate hotel chains-the Albert Pick system which operates 26
hotels in 9 States, the Sheraton system which operates 22 hotels
in 10 States, and the Statler system which operates 8 hotels in 7 States.
On this record it cannot be gainsaid that the Employer' s operations
have a substantial and important effect on interstate commerce. In-
deed, our majority colleagues specifically reject the Employer's con-
tention that it is not engaged in commerce within the meaning of
the Act. The only difference of opinion which exists between the
majority and the dissenters, therefore, is with respect to the deter-
mination whether it would effectuate the policies of the Act to assert
jurisdiction which clearly exists.
As pointed out in the majority opinion, the Board has recently
unanimously adopted a set of standards by which to determine the
question whether as a matter of policy it should exercise its jurisdic-
tion in specific cases. Applying those standards to the case before
its it is clear that the Employer meets three criteria contained therein,
any one of which would require the assertion of jurisdiction. Thus
the Employer has out-of-State inflow exceeding the $500,000 minimum
specified in the standards.1' Also, as noted, several of the hotels
are units of large multistate hotel chains. We should, therefore,
take jurisdiction of them and the association 12 under the section of
the policy covering establishments which, even though local in char-
acter, are operated as parts of a multistate enterprise.13
11 Federal Dairy Co., Inc., 91 NLRB 638.
12 As the majority opinion notes, it is the Board's well-established policy to treat an
association as a single enterprise in determining whether jurisdicton should be asserted ;
if the activities of some employer -members of an association are such that the Board would
assert jurisdiction over them, it takes jurisdiction of the entire association even though
it would not take jurisdiction over other members considered separately.
13 The Borden Company, 91 NLRB 628.
1392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The third criterion requiring the assertion of jurisdiction here
is that part of the Board's new policy announced October 11 in
Westport Moving and Storage Company, 91 NLRB 902. There
a unanimous Board found that "it will effectuate the policies of the
Act to assert jurisdiction over enterprises which substantially affect
the national defense." (Emphasis supplied.) The Board took juris-
diction of an individual proprietorship in Kansas City, Missouri,.
having 2 employees engaged in moving and storage operations and
10 employees engaged in making packing boxes for Fifth Army
Headquarters for use in shipping personal effects of military per-
sonnel. The Board found this latter work to be "a part of the na-
tional defense effort." Does the hotel industry of St. Louis "sub-
stantially affect the national defense"? The Hotel Gazette, for April.
15, 1944, pp. 10, 19, provides succinct and telling testimony as to
the correct answer to such a question, based on the experience of
the hotel industry and the War Production Board during World
War II.
Because of the seriousness of any delay in the accommoda-
tion of essential transient hotel guests, WPB's Office of Civilian
Requirement Tuesday urged hotel operators to-adopt every pos-
sible means of assuring hotel lodging accommodations for essen-
tial travelers. At the same time the Office of Defense
Transportation urged hotels to restrict conventions as a move to.
conserve transportation, and to permit hotels to employ their
facilities for the most essential uses.
Hotels as well as factories producing war goods are an essential
part of the war production program since they provide lodging
and food for persons traveling on essential business directly
connected with, the war program. . . . [Emphasis supplied.]
. . . Of the one million five thousand hotel rooms in the country,,
approximately one million are used every day for transient guests..
Of these, approximately 650,000 are occupied by military per-
sonnel traveling on government business, for whom accommoda-
tions have not been made available elsewhere, or by civilians
traveling in the public interest either directly in connection with
war production or for essential civilian needs. Since the aver-
age stay of essential travelers is approximately two days, some
325,000 new transient essential guests. must be placed in hotel
rooms every day. If even one hour is lost by each of the 325,000,
guests in locating and being assigned to a hotel room, some 325
thousand manhours a clay-enough to complete 13 flying for-
tresses-would be lost to the war effort.
HOTEL ASSOCIATION OF ST. LOUIS 1393
.. . Today the majority of hotels are indirectly aiding in the
production of war goods. Sixty-Hive to eighty percent of their
business in every large industrial city is a part of war production
the Hotel Section [of the WPB Office of Civilian Requirement]
explained. . . . [Emphasis supplied.]
It is true that we are not in the middle of a wartime economy today
although we may be on the verge of one. Nevertheless, the President
has declared a national emergency 'and our industrial life and cer-
tainly our governmental policies are being geared to facilitating de-
fense production and the national defense effort. Differences in the
impact of hotels on the World War II war production program and
on today's defense program are differences in degree only and the
latter impact will unquestionably be an accelerating one. Particularly
after this Board has found it necessary to the national defense to assert
jurisdiction over an employer in Kansas City, Missouri, who has 10
men making packing boxes for the Army, We are unable to comprehend
how a majority of this Board can disregard not only the peacetime
effect on interstate commerce, but also the substantial effect on the
national defense of the $15,000,000 hotel industry in the great rail,
water, and industrial center of St. Louis, located' at the opposite end
of-the State of Missouri 14
Although the Board's new policy requires the assertion of juris-
diction over this Employer, our colleagues of the majority turn their
back on these standards and refuse to assert jurisdiction because of an
earlier, self-imposed policy of abnegation with respect to the hotel
industry. We regard their action in making the hotel industry an
exception to the new jurisdiction policy as most unfortunate. One of
the principal reasons for the adoption of the new policy was to remove
the uncertainty which had existed concerning the cases over which the
Board would assert jurisdiction. The standards contained in that
policy have not only facilitated our own processing of cases but have
made it possible for parties contemplating the use of Board processes
and for our own Regional Offices readily to determine whether or
"We are unable to see how our majority colleagues can so lightly brush aside the factor
of the impact of the hotel industry on the national defense as not sufficiently "impressive,"
simply because the historical material with reference to th^ hotel industry in World War II
quoted above was not introduced in the record and "explored" by the parties. It has been
a long sanctioned practice for the Board both. in its decisions and in its briefs in the
courts to cite and rely upon economic data in recognized source materials which has
not been introduced in evidence . See Inland Steel Company, 77 NLRB 1 ( see footnote 4,
p. 2). enfd. 170 F. 2d 247, cert. den. 336 U. S. 360. Certainly no more appropriate area
can exist for the use of this practice than where the Board does it in order to exercise
an informed discretion. Nevertheless, if our colleagues feel that more record evidence or
further opportunity for the parties to "explore" this point is desirable,.the way to achieve
this is to reopen the record , not dismiss the petition.
1394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not the Board would entertain a petition or complaint. Today's deci-
sion undermines the efficacy of that policy. Is it safe to assume that
no other exceptions will be made to the new standards? 15
Moreover, we can find no compelling considerations of law or policy
to justify special treatment of the hotel industry. The majority con-
tinues to rely upon Board custom and precedent under the Wagner
Act which we found "sterile" in relation to a specific case in our White
Sulphur Springs dissent.16 So far as we are aware the legislative
history of the Wagner Act contained nothing to show that Congress.
intended to exempt the hotel industry as such from the operation
of the Act. We cannot see that, the mere fact that the legislative
history of the Taft-Hartley Act fails to show that any Member of
Congress quarreled with the old Board's administrative policy not to
assert jurisdiction over hotels, or the isolated instance of post legis-
lative history adverted to by the majority, should be given controlling
weight to cause this Board to carve out a permanent exemption from
the statute for that industry without regard to how serious the impact
of its operations on commerce or on the national defense may be in.
particular cases. It is a well-established principle of statutory con-
struction that exemptions from legislation such as ours must be strictly
construed. At the least they should be expressed-and expressed in
the statute by the Congress. We see no justification for this Board
to write an exemption of the hotel industry into the Act, particularly
in a time of.national emergency and national defense effort; that in
effect is what the decision of the majority does.
15 We cannot agree with our colleagues that the new policy was not intended to accom-
plish and imply uniformity without exceptions in its application to enterprises which meet
the standards for the assertion of jurisdiction. The policy was not limited, as the
majority suggests, to "cases where earlier precedent had sometimes appeared uncertain."
In certain areas the policy does use an industry approach, e. g., jurisdiction is taken over
instrumentalities of commerce and public utilities as such. But the inflow and outflow
tests, and the category of multistate enterprises, are written and intended to be applied
without regard to the nature of the business involved in a case. Indeed, the use of these
objective criteria in areas where an industry approach had previously been utilized was
recognized as a virtue of the hew policy. It was similarly recognized that the use of
these objective criteria would result in the assertion of jurisdiction over some industries
which the Board had not taken earlier when it used an industry approach and characterized
them as essentially local in character. Two examples of this are retail stores and whole-
sale bakeries over both of which the Board now asserts jurisdiction on the inflow and
outflow tests.
16 The White Sulphur Springs Company, 85 NLRB 1487.