International Trade Mart

National Labor Relations Board - Board Decisions

Dec 13, 1949

87 N.L.R.B. 616 (N.L.R.B. 1949)

In the Matter Of INTERNATIONAL TRADE MART, EMPLOYER and BIIILD-
ING SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 275, AFL,
PETITIONER
Case No. 15-RC-276.Decided December 13, 1949
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held before Richard C.
Keenan, hearing officer. The hearing officer's rulings made at the
hearing are free from prejudicial error and are hereby affirmed.
Upon the entire record in the case, the Board finds :
1. The Employer is a nonprofit corporation whose object is to
develop, promote, and maintain trade and commerce between the
people of the United States of America and the people of other
countries of the world, particularly the South American Republics.
In pursuance of this objective, the Employer operates a five-story trade
mart in New Orleans, Louisiana, where manufacturers, merchants,
and their agents may display their wares and buyers and sellers may
be brought together. This building is occupied by approximately 108
tenants, representing over 400 different firms. Between two-thirds and
three-fourths of the tenants are firms or representatives of firms with'
principal places of business outside of Louisiana. Seven or eight of
the tenants are foreign governments; merchants of 26 foreign coun-
tries are represented among the tenants. Several State agencies also
rent exhibit space in the building. Approximately 45 percent of the
tenants have business establishments in the State of Louisiana.
No manufacturing, shipping, or processing of goods is performed in
the building, nor do any of the tenants maintain stocks of merchandise
in the building. Tenants generally confine their activities in the
building to the promotion of sales by the display of samples and
issuance of catalogs listing their merchandise. In some cases, tenants
take orders for goods to be shipped from distribution outlets located
elsewhere. The orders are then transmitted to the appropriate point
to be filled. The Employer purchases all of its supplies within the
State of Louisiana.
The Employer maintains that its operations do not affect coin-
merce within the meaning of the Act. We cannot agree with this con-
87 NLRB No. 97.
616
INTERNATIONAL TRADE MART 617
tention. We regard this case as distinguishable from the Midland'
Building 1 case in which we held that the business of owning and
operating a general o f lice building is "essentially local in character,"
despite the fact that, fortuitously, many of the tenants are engaged in
interstate commerce. We also noted that the activities of the tenants,
in that case were predominantly clerical and constituted only a small
and unimportant part of their interstate operations so that the effect
of building operations on such interstate operations would be.
negligible.
The Employer in the instant case, however, is not in the business of
renting space in a general office building to a variety of tenants. It
exists for the sole purpose of promoting international trade and it
accomplishes its mission by providing a trade mart or central exhibi-
tion space where tenants may display products and buyers and sellers
maybe brought together. The promotional and sales activities carried
on in the mart plainly are a direct and important factor in the genesis
of commercial transactions involving the shipment of goods in inter-
state or foreign commerce; otherwise the mart would cease to be
dedicated to such use. A shut-down of the mart would have an im-
mediate and direct adverse effect on the very interstate and foreign
commerce which it was constructed to foster. It would be inaccurate
and wholly unrealistic to characterize such an enterprise as "essentially
local." We find, therefore, not simply because of the purpose for
which the Employer is organized, but also because of the use to which
the mart is dedicated, that the Employer's operations "affect com-
merce" within the meaning of the Act and that it will effectuate the
policies of the Act to assert jurisdiction.2
2. The labor organization involved claims to represent certain
employees of the Employeer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act.3
I Midland Building Companij . 78 NLRB 1243, following 10 East Fortieth Street Build-
ing, Inc. v. Callus , 325 U . S. 578 , which reached the same result under the Fair Labor
Standards Act.
2 This case is much closer to Borella v . Borden, 325 U . S. 679 , than it is to the Midland
Building and Callus cases . In the Borella case ( distinguished in the Callus case), the
Supreme Court held that maintenance employees in an office building owned by the Borden
Company and predominantly dedicated to use as a headquarters for conducting its far-
flung interstate business , were necessary to the production of goods for commerce in the
Borden Company 's manufacturing operations and hence were covered by the Fair Labor
Standards Act.
3 The Employer maintains that the Regional Director (lid not properly check the Peti-
tioner's showing of interest, as no pay roll was requested for purposes of comparison. We
find no merit in this contention . It is well settled that the Petitioner ' s showing of interest
is an administrative matter not subject to collateral attack. 0. D . Jennings ct Company,
68 NLRB 516.
618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The Petitioner seeks a unit composed of the Employer's inspec-
tresses, maids, porters, waxers, polishers, scrubbers, floormen, assistant
floormen, utility men, elevator operators, head porters, window wash-
ers, elevator starters, assistant elevator starters, and watchmen. The
Employer would limit the unit to porters, maids, and elevator
operators.4
All parties agree that the chief engineer, the night superintendent,
the assistant engineer, the maintenance man,' outside service watch-
men,° temporary or casual employees,? and supervisors should be ex-
cluded. As the Employer employs no workers in the categories of
inspectress, waxer, polisher, scrubber, floorman, assistant floorman,
utility man, head porter, window washer, elevator starter, or assistant
elevator starter, the only dispute between the parties concerns the
inclusion or exclusion of the watchmen.
The Employer employs two night watchmen, who are not armed
or deputized. They make rounds and are responsible for the build-
ing's protection. They have authority to search bundles carried by
persons leaving the building, and to exclude from the building em-
ployees who are drunk or disorderly. A tenant entering the building
at night must sign a register and then be escorted to his office by the
watchman on duty. In so doing, the watchman operates the elevator;
he also operates the elevator for the convenience of clean-up employees
working at night.
The watchmen are under the supervision of the chief engineer, who
also supervises the other employees. One watchman, who is uni-
formed, works the 4 p. in. to midnight shift. In addition to the duties
described above he operates one elevator exclusively from 4 to 6 p. m.,
together with the regular elevator operator. The other watchman,
who is not uniformed, is on duty from midnight to 8 a. m. The record
does, not indicate-what percentage of time• is spent by either watchman
in operating the elevator.
It seems clear that the watchmen's principal duty is the protection
of the building and the property therein. The operation of the ele-
vator is only incidental to this primary function. Accordingly, we
4 The porters and maids clean the building , wax, polish , and scrub the floors , and clean
the doors , walls, and showcases. The elevator operators run the elevators.
5 The chief engineer and the night superintendent are supervisors . The assistant engi-
neer and the maintenance man are currently represented by another labor organization.
6 The outside service watchmen are not employees of the Employer ; they work for a
watchman service and are used by the Employer on Sundays and holidays to supplement its
own watchmen.
7 Temporary or casual employees are hired to relieve regular employees during vacation
periods.
INTERNATIONAL TRADE MART 619
find that the watchmen are guards within the meaning of the Act, and
we shall therefore exclude them from the unit.8
We find that all porters, maids, and elevator operators employed by
the Employer, excluding watchmen, outside service watchmen, tempo-
rary or casual employees, the maintenance man, the assistant engineer,
the night superintendent, the chief engineer, and all other supervisors,
as defined by the Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9 (b) of the Act;
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the pur-
poses of collective bargaining with the Employer , an election by secret
ballot shall be conducted as early as possible , but not later than 30
days from the date of this Direction , under the direction and super-
vision of the Regional Director for the Region in which this case was
heard, and subject to Sections 203.61 and 203.62 of National Labor
Relations Board Rules and Regulations , among the employees in the
unit found appropriate in paragraph numbered 4, above, who were
employed during the pay-roll period immediately preceding the date
of this Direction of Election , including employees who did not work
during said pay-roll period because they were ill or on vacation or
temporarily laid off , but excluding those employees who have since
quit or been discharged for cause and have not been rehired or rein-
stated prior to the date of the election , and also excluding employees
on strike who are not entitled to reinstatement, to determine whether
or not they desire to be represented , for purposes of collective bargain-
ing, by Building Service Employees International Union, Local 275,
AFL.
MEMBER GRAY, dissenting::
A majority of the Board has found that the Employer's operations
"affect commerce" within the meaning of the Act because it exists for
the purpose of promoting international trade. My colleagues thus
make the purpose for which a business exists the governing factor in
asserting jurisdiction over the Employer. This I believe to be im-
material. Rather I think that we should look to what an Employer
does as the criteria for assuming jurisdiction over its operations.
In the Midland Building B case, we held that the business of owning
and operating a general office building is "essentially local in char-
acter." I find the distinction drawn between that case and the present
one to be unwarranted and artificial. In the Midland Building case,
8 Hat Corporation of America , 86 NLRB 457.
B Midland Building Company, 78 NLRB 1243.
620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the building was occupied by 15 different railroad companies , the West-
,ern. Union Telegraph Company, the Acme Fast Freight Company, and
several construction and manufacturing firms, most of whom were
clearly engaged in interstate commerce. The Board, however, held
that the clerical activities of these tenants, insofar as the Employer's
building was concerned, constituted an unimportant part of their
interstate operations. We further held that the services rendered by
the Employer's building maintenance employees was too remote from
the tenant 's interstate operations to warrant the taking of jurisdiction.
In the present case, no manufacturing, shipping, or processing of
goods is performed in the building,.and none of the tenants maintain
stocks of merchandise in the building. Here, the tenants conduct
little or none of their actual business transactions in the building.
They are merely engaged in promotional activities. I believe that the
services rendered by the maintenance employees in the instant case
are just as remote from the tenants' interstate operations as they were
in the Midland Building case. I can perceive no realistic distinction
between the two cases.
I am of the opinion that the Midland Building decision is con-
trolling in the disposition of this case, and requires us to hold that
it would not effectuate the policies of the Act to assert jurisdiction. I
would therefore dismiss the petition.