Mistletoe Operating Co.

National Labor Relations Board - Board Decisions

Feb 19, 1959

122 N.L.R.B. 1534 (N.L.R.B. 1959)

1534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and that the employees were advised they could vote any way they
wanted to and their jobs would not be affected thereby. As to this
objection, and as to all the other objections, the Regional Director
found in the course of his investigation no probative evidence in
support thereof.' Accordingly, he recommended they be overruled.
Having considered the objections, the Regional Director's report,
and the exceptions thereto, we find in agreement with the Regional
Director that the objections do not raise substantial and material
issues with respect to the conduct of the election. Accordingly, the
objections are hereby overruled. As the Union has not secured a
majority of the valid votes cast in the election, we shall merely
certify the results thereof.
[The Board certified that a majority of the valid ballots was not
cast for Local 103, Amalgamated Meat Cutters and Butcher Work-
men of North America, AFL-CIO, and that said organization is not
the exclusive representative of the Employer's employees in the unit
found appropriate.]
5 Specifically , the Regional Director found that no objectionable conduct affecting the
results of the election had occurred between August 15, the date of the Decision and
Direction of Election , and September 12, the date on which the election was held. See
F. W. Woolworth Company, 109 NLRB 1446. We have fully considered and find no merit
in the Union 's request that the Board overrule the cutoff doctrine in the Woolworth case,
supra, which holds that only alleged objectionable conduct occurring after the date of
the decision and direction of election in a Board -ordered election will be considered.
The Union asserts in its brief that the evidence it submitted in support of the objections
and pending unfair labor practice charges provides grounds to set aside the election. As
above noted , the Regional Director found otherwise , and we agree, so far as concerns
such evidence relating to the objections which was timely submitted and disclosed in the
Regional . Director ' s investigation . The Union does not allege further evidence which
would not be foreclosed by the Woolworth cutoff rule.
It appears , in any event , that the discharge of Hall took place prior to the Woolworth
cutoff date, and that the discharges of Green, Griffin , and Huckaby did not occur until
September 15, 1958, 3 days after the election , and therefore could not have affected the
results of the election.
Mistletoe Operating Company and Building Service Employees,
Local 245, AFL-CIO, Petitioner. Case No. 16-RC-2424. Feb-
ruary 19, 1959
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9(c) of the National
Labor Relations Act, a hearing was held before Evert P. Rhea,
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 this case the Board finds :
1. The Employer is a partnership of M. Murray McCune and
Gordon A. McCune, and is engaged in the business of real estate
management in Tulsa, Oklahoma. In 1957 the Employer entered
122 NLRB No. 161.
MISTLETOE OPERATING COMPANY 1535
into a contract with the Sunflower Corporation, an Oklahoma corpo-
ration, whereby it agreed to operate, maintain, service, and manage
an office building in Tulsa, known as the Shell Building, which is
owned by Sunflower. Under the terms of the agreement, the Em-
ployer furnishes all operating and maintenance services and such
other services to tenants of the building as are provided for in leases
running between the tenants and Sunflower. During the first 11
months of calendar year 1958, the Employer received approximately
$89,500 from Sunflower for operating and management expenses and
for fees for its services. In addition it received approximately
$12,000 from tenants of the Shell building for services performed
in their behalf as well as an undisclosed amount from the owner of
a small office building in Oklahoma City, which it also manages
under a similar kind of contract.'
As is indicated above, Sunflower owns the Shell building, which
building is its only physical asset. Of Sunflower's 500 outstanding
shares of stock, 245 are held by the Employer's partners as indi-
viduals. M. Murray McCune is a director and president of Sun-
flower, and Gordon A. McCune is its vice president. The remaining
shares of stock and the remaining directorships, and the office of
secretary-treasurer are held by the Tulsa Rig, Reel and Manufac-
turing Company or by officers or directors of that corporation. Sun-
flower has no employees, and although it enters into leasing agree-
ments with tenants in the Shell Building, the Employer collects the
rentals and transmits them to Sunflower. The principal tenant of
the Shell building is the Shell Oil Company which pays rental fees
for space and services in excess of $100,000 per annum to Sunflower.
The parties stipulated that Shell Oil Company is engaged in inter-
state commerce'
The Employer contends that its operations are purely local and
do not affect commerce within the meaning of the Act, and that in
any event, as it is merely the contract manager of the Shell Building,
and not the owner, its operations do not satisfy the Board's recently
announced jurisdictional standard for office building operations.
Ever since the enactment of the National Labor Relations Act in
1935 the Board has consistently held to the position that it better
effectuates the policies of the Act and promotes the prompt handling
of cases not to exercise its jurisdiction to the fullest possible extent
under the authority delegated to it by Congress. For the first 15
years the Board exercised its discretion in this area on a case-by-case
basis. In 1950 the Board first adopted certain jurisdictional stand-
ards designed to aid it in determining where to draw the dividing
1 This building 's only tenant is Shell Oil Company.
2 The Board has asserted jurisdiction over Shell Oil Company operations in numerous
proceedings.
1536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
line between exercised and unexercised jurisdiction. In 1954 the
Board reexamined its jurisdictional policies in the light of its expe-
rience under the 1950 standards and' revised' its jurisdictional stand-
ards.. At that time the Board noted that "further changes in cir-
cumstances may again require future alterations of our determinations
one way or another." 3 Consistent with this practice of periodic
review of its jurisdictional policies and as a direct consequence of
the Supreme Court's decision in P. S. Guss, d/b/a Photo Sound
Products Manufacturing Company v. Utah Labor Relations Board 4
denying to the. States authority to assert jurisdiction over enterprises
over which the Board declines to exercise its statutory jurisdiction,
the Board undertook a thoroughgoing review of its existing juris-
dictional policies and of the standards through which such policies
were implemented. This review persuaded the Board that the time
had come to revise its jurisdictional policies "so that more individ-
uals, labor organizations and employers may invoke the rights and
protection afforded by the statute." In the Siemons Mailing Service .5
the Board fully set forth the general considerations which persuaded
it that this could best be accomplished by the utilization of revised
jurisdictional standards as an administrative aid in drawing the
jurisdictional dividing line. The Board has chosen this case to set
forth the revised standard applicable to enterprises engaged 'in the
operation and management of office buildings.
The Board has determined that it will effectuate the policies of the
Act to assert jurisdiction over all enterprises engaged in the man-
agement'and operation, (whether as owners, lessors, or contract man-
agers) of office buildings, if the gross revenue derived from such
buildings amounts to $100,000, of which $25,000 must be derived from
organizations whose operations meet any of the Board's jurisdictional
standards, exclusive of the indirect outflow and indirect inflow
standards established in the Siemons Mailing case."
This new standard eliminates the requirements contained in the
1954 standard as announced in the McKKinmey case,' that an em-
ployer must own or lease the office building involved, must utilize
the building primarily to house its own offices, and must otherwise
be engaged in interstate commerce, because we believe that this
standard should be designed to measure the effect on commerce of
a labor dispute between the employees who service and maintain an
office building and their employer. Such disputes affect commerce
because they interfere, or tend to interfere, with the conduct of the
8 Edwin D. Wemyss, an individual , d/b/a Coca-Cola Bottling Company of Stockton.
110 NLRB 840, 842.
353 U.S. 1.
6122 NLRB 81.
6 Siemons Mailing Service, supra.
7 McKinney Avenue Realty Company, 110 NLRB 547.
MISTLETOE OPERATING COMPANY 1537
interstate commercial activities carried on within the building.'
Manifestly such effect is not dependent upon the fact that the em-
ployer to the employees involved, provides the maintenance and
service functions necessary to the operation of the building as an
incident of an ownership or leasehold interest, rather than pursuant
to a contractual arrangement, as here, with the owner of the build-
ing. Nor does the effect depend upon the fact that the interstate
activities interfered with, are those of the employer of the employees
rather than those of a tenant of the building.'
Turning now to appraisal of the impact on commerce of the Em-
ployer's operations, we find no merit in the Employer's contentions
that its operations do not fall within the Board's jurisdiction, and
are, in any event, not within the minimal requirements of its juris-
dictional standards. The Shell Building, which the Employer op-
erates pursuant to a contract with the Sunflower Corporation, is
occupied by several tenants, including the Shell Oil Company.
Sunflower Corporation receives in excess of $100,000 in rental fees
from Shell Oil Company alone. Accordingly, we find that the Em-
ployer's operations satisfy the requirements of the office building
standard, as set forth above, and that it will therefore effectuate the
policies of the Act to assert jurisdiction herein.10
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 Section 9
(c) (1) and Section 2(6) and (7) of the Act.
4. The Petitioner seeks to represent all building service employees,
including janitors and janitresses, employed by the Employer at the
Shell Building in Tulsa, Oklahoma. The Employer contends that
three employes of similar classification, employed by the Employer
at the office building it manages in Oklahoma City, should be in-
cluded in the unit. The three Oklahoma City employees perform
work comparable to that performed by the employees whom Peti-
tioner would include in the unit, and are under the same supervision.
However, such supervision consists merely of a weekly inspection
of the facilities made by one of the McCune brothers. There is no
interchange or contact between the employees at the two locations,
which are many miles distant from each other. Accordingly, under
these circumstances, and in view of the fact that the Petitioner does
not seek to represent them, we shall exclude the Oklahoma City
employees.
8 N.L.R.B. v. Tri -State Casualty Insurance Company, 188 F . 2d 50 (C.A. 10).
9 See Butler Brothers v. N.L.R.B., 134 F. 2d 981, 983 (C.A. 7).
10 In view of our disposition of this aspect of the case, it is not necessary to determine
whether the Employer and Sunflower Corporation constitute a single employer for juris-
dictional purposes.
505395-59-vol. 122-98
1538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find that all building service employees, including janitors and
janitresses, employed by the Employer in the operation and main-
tenance of Shell Building in Tulsa, Oklahoma, excluding office
clerical employees, professional employees, engineers, guards and
watchmen, and supervisors as defined in the Act constitute a unit
appropriate for purposes of collective bargaining within the meaning
of Section 9(b) of the Act.
[Text of Direction of Election omitted from publication.]
MEMBER RODOERS took no part in the consideration of the above
Decision and Direction of Election.
Interior Enterprises , Inc. and Gerald T. Goard, Gary Alan
Hodgins, Frederick H. Keith , James S. Gibson , Robert A. Main,
Donald Eugene Loesche , Sherman C. Krause , Guy Benjamin
Shepard, John Arnold Hovland , Harry A. Ward, Bobby
Fischer,, Louis S. Hodges, Lynn M . Flint, Frank B . Gregory,
and Billy D. Shelden
Interior Enterprises, Inc. and International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, Local No. 959. Cases Nob. 19-CA-.1509, 19-CA-1609-1 to
.19-CA-1509-14, respectively, and 19-CA-1511. February 20,1959
DECISION AND ORDER REMANDING CASE
On July 7, 1958, Trial Examiner James R. Hemingway issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent, a carrier by air, is not an employer within the
meaning of Section 2(2) of the complaint on the ground, as set forth
in the copy of the Intermediate Report attached hereto. Thereafter,
the General Counsel filed exceptions to the Intermediate. Report ac-
companied by a supporting brief. The Respondent also filed a brief.
The Board has considered the Intermediate Report, the exceptions
and briefs, and the entire record in the case, and finds merit in the
General Counsel's exceptions.
Section 2(2) of the National Labor Relations Act, as amended,
provides:
The term "employer" ... shall not include . . . any persons
subject to the Railway Labor Act...."
In addition to others, not pertinent here, the Railway Labor Act
subjects to its coverage:
122 NLRB No. 180.