NLRB v. Gene Compton's Corporation
| Decision Date | 19 January 1959 |
| Docket Number | No. 15557.,15557. |
| Citation | 262 F.2d 653 |
| Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. GENE COMPTON'S CORPORATION and Golden Gate Restaurant Association, San Francisco Local Joint Executive Board of Culinary Workers, Bartenders and Hotel & Club Service Workers of the Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, and Miscellaneous Employees' Union, Local No. 110, AFL-CIO, Respondents. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Jerome D. Fenton, Gen. Counsel, Stephen Leonard, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Frederick U. Reel, Robert E. Manuel, Attys., NLRB, Washington, D. C.
David Rubenstein, Carroll, Davis & Burdick, San Francisco, Cal., for respondents.
Before ORR, CHAMBERS, and BARNES, Circuit Judges.
Respondents in a complaint filed with the National Labor Relations Board (hereafter the Board) were charged with unfair labor practices in that the respondent employers violated section 8(a) (3) & (1) of the National Labor Relations Act, 61 Stat. 140 (1947), 29 U.S. C.A. § 158 and that respondent labor organizations violated section 8(b) (1) (A) & (b) (2) of the Act.
After proceedings duly had, the Board found the respondents guilty of said charges and entered its order that certain named affirmative conditions be complied with.
Jurisdiction was based on the finding that the respondent Association was made up of member restaurants in California, Washington, and Oregon; that its members in 1955 had gross sales in the aggregate of $10,000,000; that they sold foodstuffs in excess of $100,000 to points outside the originating states, and that they purchased foodstuffs in excess of $2,000,000 outside of the state or states in which the restaurants were located. It was also found that the members of the Association bargained as a unit with respondent unions and that, as a result, they should be considered as a single employer for purposes of determining their effect on interstate commerce with respect to the jurisdictional standards of the Board.
From these facts, the Board decided that the employers were "engaged in commerce and that it would effectuate the policies of the Act to assert jurisdiction" and subsequently entered its findings, decree and order.
On the 20th day of May, 1957, the Board petitioned this court for enforcement of its order. Respondents in their answer contest the legality of the Board's order on the sole ground that the Board discriminatively assumed jurisdiction in the instant case in that it had refused to exercise jurisdiction in cases involving the hotel industry without regard to that industry's volume of business or impact on commerce.
While the contention presented for our consideration goes to the jurisdiction of the Board and centers around the alleged unlawful discrimination by the Board in the assumption of jurisdiction in chain restaurant cases and the non-assumption thereof in hotel cases, a brief statement of the pertinent facts relating to the merits of the claim is deemed advisable.
One James T. Pope, a temporary employee of the respondent Gene Compton's, was asked by the management to take the place of a discharged employee, which he agreed to do. A representative of the respondent unions objected to this arrangement on the ground that Pope was not a member of the union and did not seem to have an inclination to become a member. At the time there was a security agreement (subsequently held to be unlawful) existing between Compton's, the Association, and the union requiring union membership as a condition of employment. Therefore the complaint of the representative was recognized and Pope was discharged and thereafter Pope made a complaint to the Board which, as we have said, held a hearing and found the discharge of Pope to be wrongful and imposed certain penalties.
Respondents pose the following question: may the Board having refused jurisdiction over the hotel industry assert jurisdiction over somewhat similarly situated employers and employees in the closely connected category of non-hotel restaurants? The Board took the view that it properly asserted jurisdiction in this case because it has:
(a) absolute discretion in determining when its jurisdiction will be exercised, and because
(b) the Board's diverse hotel and restaurant policies are historic and congressionally approved, and because
(c) budgetary considerations may require that different treatment be accorded similarly situated employers and employees.
We are persuaded that the recent opinion of the Supreme Court in Hotel Employees Local No. 255 Hotel and Restaurant Emp. and Bartenders Intern. Union v. Leedom, 79 S.Ct. 150, disposes of contention (a) made by the Board that it has absolute discretion as to when and under what circumstances it will assert jurisdiction. The Supreme Court there held that jurisdiction could...
To continue reading
Request your trial
-
Herbert Harvey, Inc. v. NLRB
...Co.), 99 U.S.App.D.C. 177, 179, 238 F.2d 38, 40 (1956); Pedersen v. NLRB, 234 F.2d 417, 419 (2d Cir. 1956); NLRB v. Gene Compton's Corp., 262 F.2d 653, 655 (9th Cir. 1959). 78 Burinskas v. NLRB, 123 U.S.App.D.C. 143, 148, 357 F.2d 822, 827 (1966). See also Melody Music, Inc. v. FCC, 120 U.S......
-
NLRB v. Pease Oil Company
...1375, 1 L.Ed. 2d 1441; Hotel Employees, etc. v. Leedom, 1958, 358 U.S. 99, 79 S.Ct. 150, 3 L.Ed.2d 143;1 cf. N. L. R. B. v. Gene Compton's Corp., 9 Cir., 262 F.2d 653, 656. Respondent, who is objecting to the exercise of Board power, can hardly derive any comfort from these cases which hold......
-
NLRB v. Harrah's Club
...industry will be substantially prejudiced by Board regulation because racetracks are not similarly regulated. See N.L.R.B. v. Gene Compton\'s Corp., supra 262 F.2d 653." Page The Union urges that although the decision of this court in NLRB v. Harrah's Club, supra, was not made until June 14......
-
Boyles Galvanizing Company of Colorado v. Waers, 6673.
...view of the Senate conferees that such provision would permit dilatory tactics in representation proceedings.'" 2 N. L. R. B. v. Gene Compton's Corp., 9 Cir., 262 F.2d 653; N. L. R. B. v. National Gas Co., 8 Cir., 215 F.2d 3 In Leedom v. Kyne, 358 U.S. 184, 79 S. Ct. 180, 184, 3 L.Ed.2d 210......