NLRB v. National Survey Service, Inc.
| Decision Date | 12 April 1966 |
| Docket Number | No. 15348.,15348. |
| Citation | 361 F.2d 199 |
| Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. NATIONAL SURVEY SERVICE, INC., Respondent. |
| Court | U.S. Court of Appeals — Seventh Circuit |
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Marcel Mallet-Prevost, Asst. Gen. Counsel, Leonard M. Wagman, Atty., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Elliott Moore, Atty., N. L. R. B., Washington, D. C., for petitioner.
Fred H. Daugherty, Chicago, Ill., Winston, Strawn, Smith & Patterson, Chicago, Ill., of counsel, for respondent.
Before HASTINGS, Chief Judge, and KILEY and SWYGERT, Circuit Judges.
The National Labor Relations Board has petitioned this court for enforcement of its order requiring National Survey Service, Inc., (Survey) to bargain, upon request, with Chicago Journeymen Plumbers' Local Union 130, U. A. Technical Division, AFL-CIO (union).
Survey is an Illinois corporation, employing 13 persons, engaged in the business of making real property surveys. Out of Survey's 1963 gross volume of business of $164,499.30, $7,355 was derived from surveys made outside Illinois; $36,921 was derived from services for enterprises directly engaged in commerce; and $7,400 was derived from service performed for the City of Chicago, Department of Urban Renewal, which participates in a national federal program and receives federal funds.
On May 18, 1964, the Board's acting regional director (hereafter referred to as regional director), acting on a union petition, issued a decision and direction of election, finding that a unit of Survey's surveying employees was appropriate for bargaining.
Survey requested the Board to review the regional director's decision, objecting to the assertion of jurisdiction over Survey. The Board denied the request on the ground that it raised no substantial question.
The parties proceeded to an election on June 17, 1964. Of the six ballots cast, there were three votes for the union, one against and two were challenged. The union challenged the ballot of Robert Stevens on the ground that he was a licensed surveyor and therefore a "professional employee". It challenged the ballot of Nicholas Raimondi, on the ground that he was a supervisor. Survey objected to the challenges, arguing that they were improper.
Survey also filed objections to the conduct of the election, alleging that two union organizers had engaged in electioneering in the vicinity of the poll.
The regional director investigated the vote challenges and the charge of electioneering. The union challenge to Stevens' ballot was overruled on the ground that, although he was a licensed surveyor, he performed a job as a party chief, a classification included within the certified unit. The union challenge to Raimondi's ballot, however, was sustained because the regional director concluded that he was a supervisor as defined in the Labor Management Relations Act, 29 U.S.C.A. § 152(11).1
The regional director made findings regarding Survey's electioneering charge and drew the conclusion that, in the absence of any evidence of coercive statements, there was no basis for setting aside the election.
In accord with his decisions on Survey's objections, the regional director certified the union as bargaining representative of the employees in the unit.
Survey filed a request for Board review of the regional director's supplemental decision and certification of representation. In its request, Survey repeated its electioneering charges and challenged the finding that Raimondi was a supervisor. Survey urged that the regional director had committed prejudicial error in deciding the question of Raimondi's supervisory status through the use of an affidavit submitted by Raimondi. Survey complained that it did not receive a copy of Raimondi's affidavit until after the regional director determined he was a supervisor.
On August 14, 1964, the Board denied Survey's request for review on the ground that it had raised no substantial issue warranting review.
On October 26, 1964, the regional director issued a complaint charging Survey with refusal to bargain with the union. Survey answered the complaint, admitting its refusal to bargain, but contended that the certification of the union was "null and void" and that the regional director's certification was illegal.
The Board's general counsel moved for judgment on the pleadings, but Survey requested an opportunity for oral argument. The matter was referred to a trial examiner, who directed Survey to state what issues it was prepared to tender, other than those already raised before the Board. The trial examiner further denied Survey's request for oral argument, but gave Survey an opportunity to file a brief.
Survey responded and amended its answer to the complaint. In its amended answer, Survey added an additional defense, claiming that the actions of the regional director were based upon an ex parte administrative investigation, which deprived Survey of a hearing, and that the certification was contrary to the provisions of the Labor Management Relations Act, the Administrative Procedure Act, and the Due Process Clause of the United States Constitution. These were essentially the same points made when Survey petitioned the Board to review the representation case.
On January 11, 1965, the trial examiner issued his decision. Since it did not appear to him that Survey proposed to offer any evidence which he could receive, he felt that a formal hearing would not serve any useful purpose. On the ground that Survey had admitted its refusal to bargain with the union and that the issues Survey sought to raise before him were issues already considered by the Board in the representation case, the trial examiner found Survey to have committed an unfair labor practice.
Survey filed exceptions to the trial examiner's decision. After consideration, the Board adopted the findings, conclusions, and recommendations of the trial examiner.
In opposing the petition for enforcement of the Board's bargaining order, Survey argues that the Board does not have jurisdiction over an employer conducting a small local land surveying service and that Survey should have been given a hearing at some stage of the administrative proceedings on the issue of the vote challenges and the conduct of the election.
Section 10(a) of the Labor Management Relations Act empowers the Board "to prevent any person from engaging in any unfair labor practice * * * affecting commerce." 29 U.S.C.A. § 160 (a). Commerce is defined in the Act, in part, as meaning "trade, traffic, commerce, transportation, or communication among the several States * * *." 29 U.S.C.A. § 152(6). "Affecting commerce" is defined as meaning "in commerce, or burdening or obstructing commerce, or the free flow of commerce * * *." 29 U.S.C.A. § 152(7).
The Supreme Court has declared that in passing the Act, "Congress intended to and did vest in the Board the fullest jurisdictional breadth constitutionally permissible under the Commerce Clause." National Labor Relations Board v. Reliance Fuel Oil Corp., 371 U.S. 224, 226, 83 S.Ct. 312, 313, 9 L.Ed.2d 279 (1963).
In 1959, Congress recognized the Board's practice of limiting its caseloads by not asserting its jurisdictional authority to its limit. In order to have the "no man's land" of doubt between federal and state authority occupied, Congress enacted 29 U.S.C.A. § 164(c) (1), which provides that "The Board in its discretion, may, by rule of decision or by published rules * * * decline to assert jurisdiction over any labor dispute * * where, in the opinion of the Board, the effect of such labor dispute on commerce is not sufficiently substantial to warrant the exercise of its jurisdiction * * *." In the event the Board declines jurisdiction, § 164(c) (2) authorizes state or territorial agencies to assert jurisdiction.
It is clear, therefore, that the Board has the fullest jurisdictional authority possible under the Constitution and that it may, but need not, decline jurisdiction.
While the Board has established and imposed upon itself jurisdictional standards which it customarily uses in determining when it will assert jurisdiction, these standards are not limitations on the jurisdiction conferred upon the Board by Congress. International Union, Progressive Mine Wkrs. v. N. L. R. B., 7 Cir., 319 F.2d 428, 435 (1963); N. L. R. B. v. Chauffeurs, Teamsters & Helpers, etc., 7 Cir., 274 F.2d 19, 23-24 (1960).
Survey, however, asserts that the Board's jurisdiction does not reach it because Survey is not engaged in commerce or any activity affecting commerce. Survey argues that surveying real estate does not involve buying or selling or owning and that surveying is essentially a local activity without significant impact on commerce.
If Survey's activity is sufficiently within commerce to be touched by the power of Congress under the Commerce Clause, then Survey may be regulated.
The Supreme Court has held that insignificant activities are subject to the commerce power:
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