N.L.R.B. v. Erlich's 814, Inc.
| Decision Date | 13 June 1978 |
| Docket Number | No. 77-1861,77-1861 |
| Parties | 98 L.R.R.M. (BNA) 2758, 84 Lab.Cas. P 10,647 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ERLICH'S 814, INC., Erlich's Northwest, Inc., Capri Launderers and Dry Cleaners, Inc. and Erlich Cleaning Company, Respondents. |
| Court | U.S. Court of Appeals — Eighth Circuit |
John G. Elligers and Michael F. Messitte, Attys., John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Carl L. Taylor, Assoc. Gen. Counsel and Elliott Moore, Deputy Assoc. Gen. Counsel, NLRB, Washington, D. C., filed briefs for petitioner.
Gerald Tockman and Charles W. Ahner, Jr., St. Louis, Mo., filed brief for respondents.
Before GIBSON, Chief Judge, HEANEY, Circuit Judge, and MacLAUGHLIN, District Judge. *
The National Labor Relations Board (Board) petitions for enforcement of its order of September 8, 1977, finding respondents Erlich's 814, Inc., Erlich's Northwest, Inc., Capri Launderers and Dry Cleaners, Inc. and Erlich Cleaning Co. in violation of § 8(a)(5), (3) and (1) of the National Labor Relations Act, 29 U.S.C. §§ 151 et seq. (1970). 1 The sole issue before this court concerns the Board's jurisdiction. 2
Max Erlich owns and operates four laundry and dry cleaning operations in the St. Louis, Missouri, area: Erlich's 814, Inc., Erlich's Northwest, Inc., Capri Launderers and Dry Cleaners, Inc. and Erlich Cleaning Company. Erlich is the president, principal stockholder and a member of the board of directors of Capri Launderers and Dry Cleaners, Erlich's 814 and Erlich's Northwest. He and his father are partners in Erlich Cleaning Co. The gross revenues for these four enterprises amounted to $314,000 in 1975.
Erlich also operates shoe repair businesses in the St. Louis area through three corporations: Erlich's Service Centers, Inc., Erlich's Inc. and Erlich's West, Inc. Erlich is the sole or major stockholder of these corporations. He also serves on the board of directors of each corporation and functions as a principal officer of each. Erlich's Service Centers, Inc., which had gross revenues of $258,922 in 1975, operates shoe repair establishments in six Famous-Barr department stores. Erlich's, Inc. and Erlich's West, which had gross revenues totaling $140,000 in 1975, operate shoe repair establishments at two Stix, Baer and Fuller department stores. These shoe repair entities were not named as respondents in this proceeding.
The labor problems at issue here involved Erlich's laundry and dry cleaning establishments only, which had gross revenues in 1975 of $314,000. In order to meet its self-imposed discretionary standard for asserting jurisdiction over retail concerns, $500,000 gross volume of business in a year, the Board combined the gross revenues of Erlich's laundry-dry cleaning concerns and his shoe repair operations. Erlich contends that these businesses were not sufficiently integrated to allow an aggregation of gross revenues and that the Board, therefore, lacks jurisdiction.
In enacting the National Labor Relations Act, Congress gave and intended to give the Board the fullest possible jurisdiction under the commerce clause of the Constitution. NLRB v. Reliance Fuel Corp., 371 U.S. 224, 226, 83 S.Ct. 312, 9 L.Ed.2d 279 (1963); Polish National Alliance v. NLRB, 322 U.S. 643, 647, 64 S.Ct. 1196, 88 L.Ed. 1509 (1944). Under § 10(a) of the Act, the Board is granted statutory jurisdiction "to prevent any person from engaging in any unfair labor practice * * * affecting commerce." 29 U.S.C. § 160(a). Section 2(7) of the Act provides a broad definition of the key term in this jurisdictional grant:
The term "affecting commerce" means in commerce, or burdening or obstructing commerce or the free flow of commerce, or having led or tending to lead to a labor dispute burdening or obstructing commerce or the free flow of commerce.
29 U.S.C. § 152(7).
In addition to this standard of statutory jurisdiction, the Board has imposed upon itself a discretionary jurisdictional standard with regard to retail enterprises. Ordinarily, the Board will assert jurisdiction over a retail enterprise only when it does a gross volume of business of at least $500,000 per year and the Board finds that it will best effectuate the policies of the Act to assert jurisdiction. Carolina Supplies and Cement Co., 122 N.L.R.B. 88 (1958).
In the instant case, the Board found that Erlich's laundry and dry cleaning concerns had purchased sufficient goods moving in interstate commerce to affect commerce and thus had met the statutory jurisdictional standard. A review of the record reveals substantial evidence supportive of the Board's finding of statutory jurisdiction. The more difficult question here is in regard to the Board's decision to assert discretionary jurisdiction. By aggregating the gross revenues of Erlich's dry cleaning-laundry and shoe repair enterprises, the Board found gross revenues in excess of its self-imposed discretionary standard of $500,000. The gross revenues of Erlich's laundry and dry cleaning businesses alone did not reach the $500,000 level. Erlich argues that since the Board's aggregation of gross revenues was improper, the self-imposed $500,000 limit has not been met and the Board is without jurisdiction.
We deem it unnecessary to determine whether the Board's aggregation of the gross revenues of the shoe repair and dry cleaning-laundry enterprises was proper, for even if we assume arguendo that it was improper, we hold that the Board nevertheless had jurisdiction. The $500,000 standard for jurisdiction over retail enterprises is a discretionary standard which the Board has imposed upon itself. Where statutory jurisdiction exists, as it clearly does here, the Board has the administrative discretion to disregard its own self-imposed jurisdictional yardstick. Glen Manor Home for Jewish Aged v. NLRB, 474 F.2d 1145, 1149 (6th Cir.), cert. denied, 414 U.S. 826, 94 S.Ct. 130, 38 L.Ed.2d 59 (1973); NLRB v. Carpenters Local No. 2133, 356 F.2d 464, 465 (9th Cir. 1966); NLRB v. West Side Carpet Cleaning Co., 329 F.2d 758, 760 (6th Cir. 1964). The existence of a discretionary jurisdictional guideline does not, of course, derogate from the breadth of the Board's statutory jurisdiction, which, as noted in Glen Manor Home for Jewish Aged v. NLRB, supra at 1149, "is as broad as the Commerce Clause."
When the Board disregards its own self-imposed jurisdictional guidelines in asserting jurisdiction on an ad hoc basis, the courts should not intervene unless compelled to do so by extraordinary circumstances, NLRB v. Timberland and Packing Corp., 550 F.2d 500, 501 (9th Cir. 1977), cert. denied, 434 U.S. 922, 98 S.Ct....
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