John W. Galbreath & Co.

JOHN W. GALBREATH & CO. 625 upon issued a charter to American Bakery and Confectionery Workers International Union, AFL-CIO, herein called ABC; that on Decem- ber 21, 1957, the membership of Local 60 voted to disAf6liate from BCW and to affiliate with ABC; and that a charter was thereafter issued to the Local as Local Union #60, ABC. On the basis of the foregoing allegations, the Moving Party asserts that it is the same entity as, and a continuation of, the Petitioner herein and that the certification heretofore issued- in this proceeding should therefore be amended to reflect the change in name of the certified representative. The Employer and BCW have filed statements in opposition to the motion. Subsequently, BCW withdrew it opposition. It is clear from the foregoing that the allegations contained in the moving party's motion constitute an attempt to raise a question con- cerning representation which the Moving Party requests that we re- solve by amending the certification. However, as the Board has explicitly stated,' "both the Act and the Board's policy require that such matters be determined through a petition and secret ballot of the employees concerned." In accordance with established Board policy, we shall therefore deny the motion. [The Board denied the motion for amendment of certification.] 2 3ieatherhead Company of Antwerp 106 NLRB 1266, 1267 see also R. M. Hollings- 7Lead Corporation,'111NLRB 840, and cases cited therein. John W. Galbreath, d/b/a John W. Galbreath & Co. and United Brotherhood of Carpenters and Joiners of America, Carpenters District Council of Pittsburgh and Vicinity, AFL-CIO, Peti- tioner. Case No. 6=RC 1980. April 25, 1958 DECISION AND ORDER Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a. hearing was held before H. G. Borchardt, 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 The Petitioner seeks a craft unit of 4 carpenters who are part of a group of some 300 office building service and maintenance employees employed by the Employer in managing "525 William Penn Place," an office building in Pittsburgh, Pennsylvania. The Employer contends that its operations do not meet the Board's jurisdictional standards. The Employer's basicbusiness involves real 1 The request for oral argument by the Employer is hereby denied as the record and briefs in our opinion adequately present the issues and the positions of the parties. 120 NLRB No. 84. 483142-69-vol. 120-41 626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD estate and brokerage. Its main offices are at Columbus, Ohio, but its operations extend into nine States. "525 William Penn Place," is a 41- story office building. Thirty-three floors of the building are owned by a corporation 2 which is, in turn, wholly owned by the Employer. The Employer does its building maintenance work under contract with the United States Steel Corporation, which rents the 33 floors. United States Steel Corporation sublets two floors and occupies the others for its own offices. As for the Employer, the only offices it occupies in the building cover about one-fifth of one floor and are used solely in con- nection with its building management responsibilities and are not used in its general business. As the building involved in this proceeding is not operated primarily for the use of the Employer's own offices, we find that for this reason alone it would not effectuate the purposes of the Act to exercise our jurisdiction here.3 We shall therefore dismiss the petition. [The Board dismissed the petition.] MEMBER JENKINS, dissenting : I disagree with the decision to dismiss the petition. I concede that under the standard imposed by McKinney the decision is correct. McKinney was one of a series of cases decided in 1954 by a bare ma- jority of the Board which established what are now known as the 1954 standards of jurisdiction. By self-imposed limitations the Board ex- cluded from the protection of the Act a large segment of American industry. Whatever justification for this abdication of its statutory duty may then have existed (see Breeding Transfer Company, 110 NLRB 493), was dissipated by the decision of the Supreme Court in Guss v. Utah Board.4 To continue to discriminate against vast num- bers of employees and employers by arbitrary rejection of jurisdiction seems to me unconscionable. Nowhere does the Act condition the rights guaranteed employees or the protection of employees and em- ployers against statutory violation upon the volume of business done by the Employer. Yet these standards now compel a major part of industry and commerce to resort to the law of the jungle since no forum may entertain their plea. I would therefore overrule McKinney and assert jurisdiction over this enterprise of the Employer which provides services in excess of $1,000,000 annually and employs approximately 300 employees in managing and operating the 33 stories of a 41-story office building occupied by the U. S. Steel Corporation. 7 The remaining eight floors are owned and occupied by a bank. s McKinney Avenue Realty Company, 110 NLRB 547, 549; American Republics Cor- poration, 110 NLRB 870. Under these decisions it is immaterial whether the Employei s other operations meet Board standards applicable thereto. + 353 U. S. 1 JOHN W. GALBREATH & CO. 627 Nor can I refrain from pointing out that the Board itself, after more mature consideration of the 1954 standards and acknowledge- ment of the need of reevaluation, substantially modified those stand- ards in The T. H. Rogers Lumber Company,' decided May 23, 1957. It rejected the concept that the assertion of jurisdiction should de- pend upon the unit sought or the scope of the employer's operations. involved in the proceeding in favor of the more realistic test of the impact of the totality of the employer's operations upon commerce as the determining factor. The record in this case establishes that this Employer is also engaged in the management of utilities for Ken- necott Copper Company in New Mexico, Utah, and Nevada for which he receives a management fee of $20,000 annually; he is constructing an addition to a hospital in Indianapolis, Indiana, for a contract cost exceeding $500,000; he is constructing, in partnership with a con- struction company, an addition to Purdue University for a contract cost exceeding $500,000; and he manages an office building and a com- pany-owned community in Birmingham, Alabama, for U. S. Steel Corporation from which he derives management fees of $24,000 and $12,000 annually. I find the refusal to assert jurisdiction over the business of the Employer is in irreconcilable conflict with the Rogers case. Like the Petitioner, I find the basis for asserting jurisdiction so obvious as to require no discussion. MEMBER FANNING, dissenting : I dissent from the majority's application of the McKinney stand- ard to decline jurisdiction in this case. Apart from its other opera- tions," the 'Employer is engaged in furnishing office building main- tenance and operating services to United States Steel Corporation, which are valued at more than $1,000,000 annually. Thus even apart from its other operations the Employer's office building operations exert an impact on commerce more than 10 times as great as that re- quired for assertion of jurisdiction under the indirect outflow stand- ard? In these circumstances I do not think the Board can justify a finding that the Employer's operations do not exert a pronounced impact on commerce. Yet such are the vagaries of the McKinney standard, that the utilization of it as the yardstick for measuring the impact on commerce of office building operations produces just that result. 5117 NLRB 1732. I also hold the Rogers decision overrules American Republics Cor- poratwn, footnote 3, supra. s Such operations are fully described in Member Jenkins' dissenting opinion Under the indirect outflow standard , the Board asserts jurisdiction over enterprises furnishing services or products valued at $100,000 to enterprises which in turn sell more than $50.000 worth of goods directly in interstate commerce. Whippany Motor Co., Inc, 115 _NLRB 52 628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The McKinney standard permits assertion of jurisdiction over office building operations only when the employer which owns or leases and which operates the office building is itself otherwise engaged in interstate commerce, and also utilizes the building primarily to house its own offices. [Emphasis supplied.] The standard requires dismissal herein, because although the Em- ployer is "otherwise engaged in interstate commerce" it does not utilize the office building operations involved herein primarily to house its own offices. Accordingly, I shall limit my analysis herein, primarily to a discussion of the objectionable effects of the primary utilization test. Suffice it -to say, however, that the requirement that an office building operator must be "otherwise engaged in interstate commerce," before the Board will assert jurisdiction, effectively pre- cludes the Board from considering the impact exerted on commerce by the very operations involved in the proceeding immediately before the Board, and which the standard ostensibly is designed to measure. The McKinney standard alone among all the Board jurisdictional standards, produces this anomalous result. This is of course com- pletely contrary to the concept that "it is the impact of the totality of an employer's operations on commerce that should determine whether the Board will assert jurisdiction in any proceeding involv- ing that employer" s which the Board only recently reaffirmed as the underlying principle of its jurisdictional policies.9 That concept as applied by the Board in all other aspects of its jurisdictional policies, requires that in determining the jurisdictional question, the Board looks beyond the immediate operation involved in a case, if standing alone such operation is insufficient to give jurisdiction, to all the other operations of the same employer. There is no justification for requir- ing the existence of such other operations, where as here, the opera- tions immediately involved exert an impact on commerce, more than 10 times that normally required of employers engaged in rendering services to enterprises which are directly engaged in interstate com- merce. Such a requirement serves only to exclude from the Board's jurisdiction all employers which are solely engaged in the operation of office buildings, whether such operations are confined to a single State or are carried on in every State of the Union. The Employer is, however, otherwise engaged in interstate com- merce operations, and to an extent sufficient to warrant assertion of 8 The T. H. Rogers Lumber Company, 117 NLRB 1732. See also Potato Growers Co- operative Company, 115 NLRB 1281, 1283 9 Ibid. JOHN W . GALBREATH & CO. 629 jurisdiction over the Employer on that basis alone.10 But though it requires the existence of such operations, the McKinney standard, precludes consideration of the impact on commerce of such operations as a basis for assertion of jurisdiction, because the Employer does not utilize the office building involved herein, primarily to house its own offices. Clearly in this respect too, the McKinney standard is in "ir- reconcilable conflict" with the Rogers decision, and with the totality of operations principle underlying all the other Board jurisdictional standards. Adherence to that principle was deemed so vital, that the Board found it necessary in the Rogers case to revise its standards for assertion of jurisdiction over multistate enterprises as originally announced in the Hogue and Knott 11 and Jonesboro 12 decisions. Adherence to that principle, in my opinion, requires the elimination of the McKinney standard as the jurisdictional standard for office building operations. Application of the "primary utilization" test to decline jurisdiction herein, not only serves as a graphic illustration of the conflict between the office building jurisdictional standard and the other jurisdictional standards of the Board, but it also demonstrates that the McKinney standard, necessarily excludes from the Board's jurisdiction all enter- prises which are primarily engaged in office building operations. Ap- plication of the standard results in assertion of jurisdiction only over employers whose office building operations are incidental to their "otherwise engaged in interstate commerce" operations. In view of the Supreme Court's recent decision in the Office Employees case,'3 that the Board could not exclude from its jurisdiction labor unions when acting as employers, as a class, I question whether the McKin- ney standard's exclusion of all employers primarily engaged in the operation of office buildings as a class , irrespective of the impact ex- erted on commerce by their operations, is within the power of the Board. Accordingly, as I do not approve of the McKinney standard, and as the Employer's operations, when judged by the standards normally applied to nonretail operations, satisfies at least two of such stand- ards,14 I would assert jurisdiction herein. 20 The Employer's home offices are located in Columbus, Ohio. As noted in Member Jenkins' opinion , the Employer is engaged in the performance of construction contracts in Indiana, which are valued in excess of $1,000,000. The performance of such contracts outside its home State satisfies the Board's direct outflow standard . Jonesboro Grain Drying Cooperative, 110 NLRB 481; Columbia-Southern Chemical Corporation, 110 NLRB 206; cf., The Danspur Company, Inc., 114 NLRB 40. 31 Hogue and Knott Supeo markets, 110 NLRB 543. 19 Jonesboro Grain Drying Cooperative, supra. 's Office Employees International Union v. N. L. R B. (Oregon Teamsters ), 353 U. S. 313 (1957 ) reversing 235 F. 2d 832. 14 See footnotes 7 and 10, supra.