International Trade Mart

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.