Herbert Harvey, Inc. v. NLRB

• Decision Date: 26 October 1967
• Docket Number: No. 20780.,20780.
• Citation: 128 US App. DC 162,385 F.2d 684
• Parties: HERBERT HARVEY, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

128 US App. DC 162, 385 F.2d 684 (1967)

HERBERT HARVEY, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 20780.

United States Court of Appeals District of Columbia Circuit.

Argued September 25, 1967.

Decided October 26, 1967.

Mr. Stanley R. Strauss, Washington, D. C., with whom Mr. Kenneth C. McGuiness, Washington, D. C., was on the brief, for petitioner.

Mr. Gary Green, Atty., N. L. R. B., with whom Messrs. Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. General Counsel, and Theodore Martineau, Atty., N. L. R. B., were on the brief, for respondent.

Before WILBUR K. MILLER, Senior Circuit Judge, and DANAHER and McGOWAN, Circuit Judges.

WILBUR K. MILLER, Senior Circuit Judge:

Pursuant to a contract with the International Bank for Reconstruction and Development, commonly called the World Bank, Herbert Harvey, Inc. provides operating and maintenance services at a complex of buildings in the District of Columbia owned by the World Bank, in which it maintains its principal office.

Harvey makes all repairs to the buildings and equipment requested by the Bank; it furnishes elevator, cleaning and other janitorial services; and it supervises the personnel necessary to provide these services. Harvey receives from the Bank a monthly advance in a fixed amount to cover the cost of the services it renders and, in addition, a fixed fee for its services.

From the monthly advances from the Bank, Harvey pays all costs of operation, including wages of employees, sick pay, vacation pay, social security taxes, and hospitalization and workmen's compensation insurance premiums. From the same source Harvey pays for all supplies and equipment used by it, but such supplies and equipment are the Bank's property. If Harvey's expenses are less than the amounts advanced by the Bank, the savings accrue to the Bank and there is no change in Harvey's fixed fee. Written approval must be obtained from the Bank before Harvey can incur expenses in excess of the fixed monthly advances, or before any items are purchased which increase the costs of Harvey's operations.

The Bank's office manager and his assistant have authority to issue work orders to Harvey's supervisors — an authority which they extensively exercise. Moreover, the Bank's managers frequently assign tasks directly to maintenance employees and supervise their performance. Harvey does the actual hiring of personnel, and screens job applicants, who must however satisfy hiring standards established by the Bank. No applicant is hired without specific Bank approval, if Harvey has any doubt as to whether his qualifications meet the Bank's standards. At times, the Bank directs Harvey to employ or to discharge certain individuals. Starting wages paid to Harvey's personnel are subject to the Bank's approval, as is any change in overall wage scales. Employees cannot be promoted or receive wage increases unless the Bank approves; and discharges recommended by Harvey's supervisors cannot be made without the Bank's specific authorization.

In these circumstances the Government Services Employees Union, Local 536, filed a petition with the National Labor Relations Board in which it claimed to represent Harvey's personnel at the World Bank and sought an election to determine its status. Harvey answered, asserting the Board does not have jurisdiction of matters involving labor relations at the World Bank. Harvey also contended that the Bank is an exempt organization and that its own operations are so intimately connected with the Bank that the Board should decline to assert jurisdiction. In the alternative, Harvey contended that the building maintenance personnel are not its employees, but are employees of the World Bank.

After reciting in its decision the factual situation substantially as we have outlined it, the Labor Board said:

"Although conditions of employment are thus subject to review and approval by the Bank, a considerable area of effective control remains vested in the Employer.¹ The Board used this term to designate Harvey. Accordingly, we find that the Employer is an employer of the employees involved * * *." (Our emphasis.)

The Labor Board also rejected Harvey's other contentions and ordered an election, which was held and led to the Board's certification of the union as bargaining representative.

Relying on its theory that the Board lacked jurisdiction, Harvey refused to bargain with the union, whereupon, pursuant to the latter's complaint, the Board's General Counsel charged Harvey with violating Section 8(a) (1) and (a) (5) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Harvey of course admitted its refusal to bargain and stood on its original position. The Labor Board granted summary judgment to the General Counsel, found Harvey guilty of the violations charged, and ordered...