Midland Rubbish Removal Co., Inc.

National Labor Relations Board - Board Decisions

Jun 29, 1990

298 N.L.R.B. 991 (N.L.R.B. 1990)

MIDLAND RUBBISH REMOVAL CO. 991
Midland Rubbish Removal Co., Inc. and Private
Sanitation Union, Local 813 International
Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America, AFL-CIO.
Case 29-CA-14017
June 29, 1990
will assert jurisdiction in this case, and remand the
case for further proceedings.2
ORDER
This case is remanded to the administrative law
judge for further appropriate action consistent with
this decision.
DECISION AND ORDER REMANDING
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On March 14, 1990, Administrative Law Judge
Joel P. Biblowitz issued the attached decision. The
General Counsel filed exceptions and a supporting
brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order.
The judge found that the complaint failed to
allege facts establishing that the Respondent met
the Board's indirect outflow standard for asserting
discretionary jurisdiction, Accordingly, he recom-
mended dismissal of the complaint. The General
Counsel excepts, and we find merit in the excep-
tions.
The General Counsel alleged that the Respond-
ent, a New York corporation, performed services
valued in excess of $50,000 for certain customers in
the State of New York. The judge recommended
dismissal of the complaint based on the General
Counsel's failure specifically to allege that the Re-
spondent's customers met the Board's direct inflow
or direct outflow standard.'
While we agree with the judge that the com-
plaint's jurisdictional allegations, even though fully
admitted, contain insufficient factual information on
which to assert discretionary jurisdiction, we find
that there is sufficient record evidence to establish
that the Respondent does in fact meet the Board's
discretionary jurisdictional standard. Specifically,
we rely on General Counsel's Exhibit 5, a stipula-
tion entered into by the parties in a prior Board
case and made a part of the record in this case,
which establishes that the Respondent's customers
annually purchase goods and commodities valued
in excess of $50,000 from other enterprises located
outside the State of New York. Accordingly, we
I The General Counsel contends that, because of an "inadvertent typo-
graphical error," the words "valued in excess of $50,000" were omitted
from the complaint's allegations regarding the goods and commodities
purchased out of state by the users of the Respondent's services
2 Cf. Laborers Local 1177 (Qualicare-Walsh), 269 NLRB 746 (1984).
(The complaint was dismissed where the General Counsel pled jurisdic-
tion solely on the basis of the complaint's allegations and there was no
proof demonstrating that the discretionary jurisdictional standard had
been met The General Counsel did not supplement those allegations at
the hearing as was done in the instant case.)
Amy S. Krieger, Esq., for the General Counsel.
Steven Schlesinger, Esq. (Jaspar, Ginsberg, Ehrlich, Schles-
inger & Hoffman), for the Respondent.
Stuart Bochner, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOWITz, Administrative Law Judge. This
case was heard by me on January 22, 1990, in Brooklyn,
New York. The complaint and notice of hearing which
issued on May 23, 1989,1 and was based on an unfair
labor practice charge filed on March 31, by Private Sani-
tation Union, Local 813 International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, AFL-CIO (the Union), alleges that Midland
Rubbish Removal Co., Inc. (Respondent), since on about
January 13, has failed and refused to execute an agree-
ment with the Union despite the fact that it had previ-
ously reached full and complete agreement with the
Union on the terms of the agreement, in violation of Sec-
tion 8(a)(1) and (5) of the National Labor Relations Act.
On the entire record, I make the following
FINDINGS OF FACT
1. JURISDICTION
The complaint alleges that Respondent is a New York
corporation and Respondent admits that it maintains its
office in Massapequa, New York, where it is engaged in
performing private and commercial sanitation and rub-
bish removal services. The substantive jurisdictional alle-
gation of the complaint then states:
4. During the past year, which period is repre-
sentative of its annual operations generally, Re-
spondent, in the course and conduct of its business
operations described above in paragraph 3, per-
formed services in the State of New York valued in
excess of $50,000, of which services valued in
excess of $50,000 were performed for various enter-
prises, including the Incorporated Village of Bell-
rose, New York, each of which enterprises annually
purchase goods and commodities from other enter-
I Unless indicated otherwise, all dates referred to relate to 1989.
298 NLRB No. 149
992 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
prises located outside the State of New York, which
are shipped to them directly from outside the State
of New York.
Respondent admitted this allegation, as well as the fol-
lowing conclusion that Respondent is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
In Siemons Mailing Service, 122 NLRB 81, 85 (1959),
the Board stated:
For the Board has concluded that it will best ef-
fectuate the policies of the Act if jurisdiction is as-
serted over all non-retail enterprises which have an
outflow or inflow across State lines of at least
$50,000, whether such outflow or inflow be regard-
ed as direct or indirect. For the purposes of apply-
ing this standard, direct outflow refers to goods
shipped or services furnished by the employer out-
side the State. Indirect outflow refers to sales of
goods or services to users meeting any of the
Board's jurisdictional standards except the indirect
outflow or indirect inflow standard.
The standard applied to Respondent is indirect out-
flow. The complaint alleges that "Respondent ... per-
formed services in the State of New York valued in
excess of $50,000 . . . for ' various enterprises . .
.
each
of which enterprises annually purchase goods and com-
modities from other enterprises located outside the State
of New York, which are shipped to them directly from
... outside the State of New York." Under the Board's
indirect outflow standard , enunicated in Siernons the
complaint correctly alleges that Respondent performed
services valued in excess of '$50,000 with various enter-
prises within the State of New York; however , the com-
plaint fails to additionally allege that any of these enter-
prises meet the 'Board's direct inflow or direct outflow
standard. Because of this deficiency, jurisdiction cannot
be asserted over Respondent.
There is a normal hesitation to dismiss a complaint
prior to a determination of the substantive issues where
the deficiency was apparently unintentional. However,
based on the allegations I cannot take administrative
notice that the Incorporated Village of Bellrose, New
York, satisfies either of the Board's direct standards, as I
could if the allegation mentioned IBM, Kodak, or some
such other company within New York State that clearly
satisfied the Board's direct standard. Counsel for General
Counsel might argue that jurisdiction should be asserted
since Respondent admitted the complaint's allegations of
jurisdiction. However, these issues may not be waived.
As the Board stated in Clark Concrete Construction Corp.,
116 NLRB 321, fn. 3 (1956): "Although no party contest-
ed the Board's jurisdiction, this question is always before
the Board."
CONCLUSIONS OF LAW
1. As alleged, the operations of Respondent, Midland
Rubbish Removal Co., Inc., do not satisfy the Board's ju-
risdictional standards.
2. The complaint should, accordingly, be dismissed.
On these findings of facts and conclusions of law and
on the entire record, I issue the following recommend-
ed2
ORDER
It having been found that Respondent is not engaged
in commerce within the meaning of the Act, the com-
plaint is hereby dismissed in its entirety.
2 If no exceptions are filed as provided by See 102 46 of the Bipard's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses