Building Service Employees Int'l Union Local 6

714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Board in Southwest Hotels, Inc.,6 a hotel chain case where the Board's gross -annual business standard of $500,000 for this industry was met, held that "legal jurisdiction must also be shown, that is, that the Respondent is "in commerce" within the meaning of the Act which means some business must be done across State lines. The Board stated: Although Southwest concedes that our jurisdictional standard is met in the case of the Marion and Lafayette hotels, it nevertheless contends that the Board is precluded from asserting jurisdiction because of a lack of proof on these records that the necessary legal jurisdiction, that which is predicated on a finding that the Employer's activities "•affect commerce," can be established. The distinction and difference between the Board's self-imposed, discretionary jurisdictional standards and the jurisdictional requirements imposed by the Act and the Constitution is fully recognized by the Board. Many of our jurisdic- tional standards already embody the conclusion that the Board's legal jurisdic- tion has been proved, since they are based on a substantial movement of goods and services across State lines. However, those standards which are stated exclusively in terms of gross volume of business (among which is the hotel standard) serve only to establish the level below which the Board believes that it would not effectuate the policies of the Act to assert jurisdiction. It is there- fore always to be understood that before we apply our gross volume jurisdic- tional standards to assert jurisdiction, the record must conclusively demonstrate the existence of legal jurisdiction. Thus, in this case, as in all hotel cases, we must be satisfied on the basis of the, record before us that the operations of the Employer "affect commerce." It is unlikely that an enterprise meeting our volume of business standard would not affect commerce, since that phrase indicates the congressional intent to exercise the fullest possible Federal jurisdiction, but the possibility never- theless must be reckoned with. We must therefore base our assertion of juris- diction in hotel cases on probative evidence rather than on any common under- standing that the manufacture and distribution of the hundreds of items con- sumed and utilized in the operation of a .commercial hotel necessarily affects interstate commerce. Although, the General Counsel alleges in the complaint that the Respondent "purchased and caused to be transported to its store in Michigan, directly from points located outside the State of Michigan, a substantial amount of meats, meat products and groceries," this allegation: has been denied by Respondent in its answer. In such a posture, some proof must be made of legal or statutory jurisdiction, that is, that the employer involved is engaged in commerce or that his operations affect commerce within the meaning of. Section 2(6) and 2(7) of the National Labor Rela- tions Act, as amended, in addition to.a showing that the relevant gross volume test has been satisfied. In other words, application of standards stated exclusively in terms of gross volume of business depends on an independent showing of legal or statutory jurisdiction showing that the employer's operations "affect commerce" and therefore, legal or statutory jurisdiction exists. Since such proof of legal or statutory jurisdiction, supra, was not introduced by the General Counsel, it is recommended, based upon the above findings of fact,and conclusions of law, that the complaint herein against the Respondent, Willard's Shop Rite Markets, Inc., be dismissed. 9126 NLRB 1161. Building Service Employees International Union Local 6, AFL- CIO [Ranke Building] and Clarence Hein. Case No. 19-CB- 706. August 18, 1960 DECISION AND ORDER Upon charges duly filed by Clarence Hein, an individual, the Gen- eral Counsel of the National Labor Relations Board, by the Regional Director for the Nineteenth Region, issued a complaint dated April 128 NLRB No. 80. BUILDING SERVICE EMPLOYEES INT'L UNION LOCAL 6 715 26, 1960, against Building Service Employees International Union Local 6, AFL-CIO, herein called the Respondent. The complaint alleged that Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of Section 8(b) (1) (A) and (2) of the National Labor Relations Act, as amended. Copies of the charge, complaint, and notice of hearing before a Trial Ex- aminer were duly served upon the Respondent and the Charging Party. With respect to the unfair labor practices, the complaint alleges, in substance, that Respondent caused and attempted to cause the Ranke Building, herein called the Employer, to discriminate against em- ployee Clarence Hein in violation of Section 8 (a) (3) of the Act. Respondent's answer admits certain jurisdictional and factual alle- gations of the complaint, but denies the commission of unfair labor practices. On April 27, 1960, all parties to this proceeding entered into a stipulation of facts, and on the same date jointly moved to transfer this proceeding directly to the Board for findings of fact, conclusions of law, and issuance of decision and order. The motion states that the parties have waived their rights to a hearing before a Trial Ex- aminer, and to the issuance of an Intermediate Report. The motion also provides that the charge, complaint, answer, and stipulation of facts constitute the entire record in the case. On May 12, 1960, the Board granted the parties' motion to transfer the case to the Board. A brief was thereafter filed by the Respondent. Upon the basis of the parties' stipulation of facts, Respondent's brief, and the entire record in the case, the Board' makes the, following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Ranke Building, herein called the Employer, operates a mercantile and office building in Seattle, Washington. It is a member of the Building Owners and Managers Association of Seattle, herein called the Association, comprising approximately 45 to 50 mercantile and office buildings in the Seattle, Washington, metropolitan area. Since 1937, the Association has represented its members in a single, multi- employer unit in collective-bargaining negotiations with Respond- ent. We find that the members of the Association, including the Em- ployer, constitute a single employer for jurisdictional purposes.2 The parties stipulated that members of the Association receive gross revenue from the operations of their buildings in excess of $100,000 'Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Board has delegated its powers in connection with this case to a three- member panel [Members Rodgers , Jenkins, and Fanning]. 2 Stiemons Mai.lang Service, 122 NLRB 81. 716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD annually, of which at least $25,000 is received from tenant firms making sales in excess of $50,000 annually to customers located out- side the State of Washington. Respondent admits, and we find, that the Association, including the Employer, is engaged in commerce, and that it will effectuate the policies of the Act to assert jurisdiction herein.' H. THE LABOR ORGANIZATION. INVOLVED Building Service Employees International Union Local 6, AFL- CIO, is a labor organization as defined in Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES In August 1958, Clarence Hein, the Charging Party, was hired by the Employer as a building and maintenance employee. Thereafter, on June 9, 1959, Respondent executed a collective-bargaining agree- ment with the Association, covering building and maintenance em- ployees of members of the Association. This agreement was effec- tive from May 1, 1959, to May 1, 1961, and, as set forth in the parties' stipulation, provided in article I, paragraph 2, that: Any new employee covered by this agreement who is not already a member of the Union must, on or before thirty-one (31) days from date of his employment become a member of the Union and shall maintain continuous good standing in the Union for the duration of his employment under this agreement. In September and October 1959 and February 1960, Hein was noti- fied by the Respondent and the Employer of the necessity of be- coming a member of the Respondent in order to continue employment with the Employer. On March 15, 1960, the Respondent requested the Association to effectuate the discharge of Hein because he had failed to become a member of Respondent. On March 15, 1960, the Employer advised Hein that he was terminated as of that date unless he "straightened out his membership status with the Respondent." On March 16, 1960, Hein made an unqualified tender of his dues and initiation fees to the Respondent, which the Respondent refused to accept. On March 23, 1960, the Employer discharged Hein. We find on the above facts that Respondent violated Section 8(b) (2), as alleged. Hein's discharge on March 23, 1960, was ad- mittedly the result of Respondent's March 15, 1960, notification to the Employer, through the Association, that Hein had failed to become a member of Respondent. However, we find nothing in the contract that would impose such a requirement of membership on Hein, and therefore nothing which would justify Respondent's request for Hein's discharge because of alleged membership delinquency. On the contrary, as set forth in the stipulation, the contract requires only s M stietoe Operating Company, 122 NLRB 1534. BUILDING SERVICE EMPLOYEES INT'L UNION LOCAL 6 717 that certain new employees become members of Respondent. Hein was an old nonmember employee, having been hired some 9 months prior to the contract's effective date. Accordingly, as Hein was not required to become a member of Respondent under the terms of the parties' contract, we find that the Respondent's causation of Hein's discharge on March 23, 1960, violated Section 8(b) (1) (A) and (2) of the Act.' IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with its operations as described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, we shall order that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. As we have found that Respondent caused the discrimi- natory discharge of Clarence Hein by the Employer, we shall order that the Respondent notify Hein and the Employer, in writing, that it has withdrawn its objection to Hein's employment by the Employer. We shall also order that the Respondent make Hein whole for any loss of pay he may have suffered by reason of the discrimination against him, by payment to him of a sum of money equal to that which he normally would have earned as wages from the date of his discharge to 5 days after the Respondent serves written notice upon the Employer of its withdrawal of objections to Hein's employment, less his net earnings, if any, during such period. The backpay shall be computed in accordance with the formula set forth in F. W. Wool- worth Company, 90 NLRB 289. CONCLUSIONS OF LAW 1. Building Service Employees International Union Local 6, AFL- CIO, is a labor organization as defined in Section 2(5) of the Act. 2. By causing, and attempting to cause, the Employer to discharge Clarence Hein, the aforementioned labor organization, the Respond- ent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (2) of the Act. 3. By the aforesaid conduct, Respondent has restrained and co- erced employees of the Employer in the exercise of the rights under *See Nordberg-Selah Fruit Inc., et al., 126 NLRB 714; New Jersey Bell Telephone Coinpany, 106 NLRB 1322 , 1325, enfd . 215 F. 2d 835 ( CA. 2). In making this finding within the confines of the General Counsel's complaint , we do not pass on the validity or invalidity of Respondent's contract, except insofar as it fails to provide a basis for Hein's discharge. 718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Section 7 of the Act, and has thereby engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 ( 6) and (7) of the Act. ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, Building Service Em- ployees International Union Local 6, AFL-CIO, its officers, repre- sentatives, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Causing or attempting to cause the Employer, or any other employer member of the Building Owners and Managers Association of Seattle, to discriminate against employees in violation of Section 8 (a) (3) of the Act, as amended. (b) In any like or related manner restraining or coercing employees of the Employer, or any other employer member of the Building Owners and Managers Association of Seattle, in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act, as amended. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Notify Clarence Hein and the Employer, in writing, that it withdraws its objection to Hein's employment and requests the Em- ployer to offer him immediate and full reinstatement, without preju- dice to his, seniority or other rights and privileges. (b) Make whole Clarence Hein for any loss of earnings suffered as a result of the discrimination against him in the manner set forth in the section herein entitled "The Remedy." (c) Post at its business offices and meeting places in Seattle, Wash- ington, copies of the notice attached hereto marked "Appendix." 5 Copies of said notice, to be furnished by the Regional Director for the Nineteenth Region, shall, after being duly signed by an authorized representative of the Respondent, be posted by Respondent immedi- ately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent to insure that the said notices are not altered, defaced, or covered by any other material. In the event that this Order is enforced by a decree of a United States Court of Appeals , there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." BUILDING SERVICE EMPLOYEES INT'L UNION LOCAL 6 719 (d) Mail to the Regional Director for the Nineteenth Region signed copies of the notice attached hereto marked "Appendix," for posting at the offices of the Employer, and other employer members of the Association, said companies willing, in places where notices to the companies' employees are customarily posted. (e) Notify the Regional Director for the Nineteenth Region, in writing, within 10 days from the date of this Order, what steps Re- spondent has taken to comply herewith. APPENDIX NOTICE TO ALL MEMBERS OF BUILDING SERVICE EMPLOYEES INTER- NATIONAL UNION LOCAL 6, AFL-CIO; TO ALL EMPLOYEES OF RAN]E BUILDING; AND TO ALL EMPLOYEES OF MEMBERS OF BUILDING OWNERS AND MANAGERS ASSOCIATION OF SEATTLE Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that : WE WILL NOT cause or attempt to cause the Employer, or any other employer member of the Building Owners and Managers Association of Seattle, to discriminate against employees, in vio- lation of Section 8 (a) (3) of the Act, as amended. WE WILL NOT in any like or related manner restrain or coerce employees of the Employer, or any other employer member of the Building Owners and Managers Association of Seattle, in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights maybe affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the Act, as amended. WE HAVE notified Clarence Hein and Ranke Building, in writing, that we withdraw our objection to Hein's employment and request the Employer to offer him immediate and full rein- statement, without prejudice to his seniority or other rights and privileges. WE WILL make whole Clarence Hein for any loss of earnings suffered as a result of the discrimination against him. BUILDING SERVICE EMPLOYEES INTERNA- TIONAL UNION LOCAL 6, AFL-CIO, Labor Organization. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material.