NLRB v. LOCAL JOINT EXECUTIVE BD. OF HOTEL & REST. EMP.

• Decision Date: 05 March 1962
• Docket Number: No. 17413.,17413.
• Citation: 301 F.2d 149
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOCAL JOINT EXECUTIVE BOARD OF HOTEL AND RESTAURANT EMPLOYEES AND BARTENDERS INTERNATIONAL UNION OF LONG BEACH AND ORANGE COUNTY and Culinary Alliance Local 681, Respondents.
• Court: U.S. Court of Appeals — Ninth Circuit

301 F.2d 149 (1962)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOCAL JOINT EXECUTIVE BOARD OF HOTEL AND RESTAURANT EMPLOYEES AND BARTENDERS INTERNATIONAL UNION OF LONG BEACH AND ORANGE COUNTY and Culinary Alliance Local 681, Respondents.

No. 17413.

United States Court of Appeals Ninth Circuit.

March 5, 1962.

Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Melvin J. Welles, Elliott Moore and Daniel J. Harrington, Attorneys, National Labor Relations Board, Washington, D. C., for petitioner.

Gyler & Gottlieb, Emanuel Gyler, Long Beach, Cal., for respondents.

Before BARNES and JERTBERG, Circuit Judges, and DAVIS, District Judge.

BARNES, Circuit Judge.

This is a petition by the National Labor Relations Board¹ for enforcement of its order² issued against respondents pursuant to Section 10(e) of the National Labor Relations Act, as amended (61 Stat. 136, 73 Stat. 59, 29 U.S.C.A. § 151 et seq.) This court has jurisdiction by virtue of the unfair labor practices having occurred in Long Beach, California.

Because one of the grounds of appeal is alleged insufficient evidence, we state the evidence in some detail. In early 1959, Crown Cafeteria, a partnership,³ was operating a cafeteria in Pasadena, California, and began remodeling a site for a second cafeteria in Long Beach, California. On about April 16, 1959, before Crown had begun hiring employees for its new Long Beach cafeteria, one Clayton Smith, Director of Organization for respondent, visited Crown's Long Beach site and left a copy of the Union's contract for one Leonard Smitley, Crown's managing partner. The contract contained a compulsory hiring clause, which required among other things that all employees of an employer who signed the contract must join the Union within thirty-one days of their employment.

On about May 2, 1959, organizer Smith returned to the Long Beach cafeteria and asked Smitley where he was obtaining employees; Smitley answered by stating that he was hiring locally. Organizer Smith then asked if Crown planned to operate a "union house." Smitley said "no," and added that he doubted, in view of Crown's wage scale and benefits, whether his employees would be interested in a union. Smitley also observed that it was up to the employees to elect whether they wanted a union; to which Smith said: "That is not the way we do it nowadays." Before leaving, organizer Smith asked Smitley if he had read the Union's contract yet; Smitley said he had not.

On May 4, 1959, the day before the Long Beach cafeteria was to open, organizer Smith returned and again asked Smitley if he had read the Union's contract. When Smitley answered that he had not, organizer Smith saw the cafeteria manager and suggested that if he "had any influence with Mr. Smitley in regard to union activities" he should use it, or the Union would picket the cafeteria. The next morning, before the cafeteria opened for business, the Union had established a picket line with signs reading:

"Notice to all members of organized labor and their friends. This establishment is non-union. Please do not patronize."

The Union admittedly did not represent a majority of Crown's employees on May 5, 1959, or on any subsequent material date.

The Board asserted jurisdiction over this case under its standards of retail business; i. e., that Crown's gross annual sales were in excess of $500,000. The Board found that Crown's business exceeded this standard and that the Long Beach cafeteria alone exceeded the standard when the business done in the first two months of its operations (May and June 1959) was projected on an annual basis.

The Board found that the Union, in attempting to have Crown sign a unionsecurity contract when the Union did not represent a majority of the cafeteria's employees, violated Section 8(b) (2) of the Act.⁴

The Board's order requires respondents to cease attempting to cause Crown to enter into a union-security contract with them when they do not represent a majority of Crown's employees, and to post the customary notices.

The briefs of the parties herein present four questions to this court. These questions may be stated as follows:

1. Did the Board properly assert its jurisdiction over the alleged unfair labor practices?

2. Is there substantial evidence in the record to support the Board's finding that respondents violated Section 8(b) (2) by attempting to cause Crown to sign a union-security contract?

3. Should the Board have consolidated the instant case with a subsequent case against respondents?

4. Does the Supreme Court's rejection of the Curtis doctrine in N. L. R. B. v. Drivers, Chauffeurs, Helpers Local No. 639, 1960, 362 U.S. 274, 80 S.Ct. 706, 4 L.Ed.2d 710, require a dismissal of the instant petition for enforcement?

I Jurisdiction

The trial examiner found the total sales of Crown's two cafeterias, during the period from July 1958 through June 1959, were in excess of $600,000; Pasadena accounting for $521,000, and Long Beach accounting for $90,000 in total sales during that period. The trial examiner also found that, during this period, both cafeterias purchased goods and equipment valued in excess of $100,000 which originated outside of California. It was further found that the record warranted a finding that both cafeterias were centrally controlled and that the figures of both could properly be considered in determining jurisdiction over the case; but, notwithstanding the propriety which such a finding would have, it was found that the projected figures of the Long Beach operation on an annual basis reveal that this operation alone meets the jurisdictional standard of the Board.

Respondents attack this finding on several theories. First, they claim that the two cafeterias are operated separately and therefore the figures from Crown's Pasadena operation cannot properly be used in determining the jurisdictional standard. From a businessman's point of view, this contention is without substantial merit. It is true separate books were kept for each cafeteria. This is common sense, and standard business procedure. How could a businessman properly analyze, conduct, evaluate, and control his business if he did not keep an accurate account on each branch of his enterprise? Recognizing the importance of following such an accounting system, does this make each branch, or cafeteria, a separate business? We hold it does not. If one location had a loss, it would offset a gain made at the other location. The profit of both would be added together to arrive at the total profit for the partnership's enterprise. Respondents offer no proof, in rebuttal to the findings, that each cafeteria was a separate partnership; i. e., no evidence is shown that each cafeteria was analogous to a separate corporation. Surely the trial examiner was correct in finding that the "figures of both cafeterias may properly be considered" in determining the jurisdictional standard of the Board.

The Board asserted jurisdiction under its standard for a retail business. Hence respondents' contention that $50,000 of direct flow was also necessary to establish jurisdiction is based on the mistaken application of the Board's non-retail standard to Crown's retail business.

But even assuming respondents' erroneous contention to be valid, the trial examiner found that "both operations purchased goods and equipment valued in excess of $100,000 which originated outside the State of California." As stated above, we believe it was proper for the Board to consider the figures of both operations in determining its jurisdiction. Thus, respondents first urge that an erroneous standard was used for determining jurisdiction and, then, that it was erroneous for the Board to consider the figures from the operation of both locations; i. e., respondents first urge this court to only consider the direct flow figures of the Long Beach cafeteria, and, then, to apply the Board's non-retail standard to a retail business.

The contention here urged by respondents as to lack of jurisdiction is without merit. That the Board properly asserted its jurisdiction may be best answered by the following language in N. L. R. B. v. W. B. Jones Lumber Co., 9 Cir. 1957, 245 F.2d 388 at 390-391:

"If the first question be considered next, it will be found that the Board had jurisdiction by statute over any operations of a company which affect commerce within the meaning of the Act.

"There is no question of the power of the Board to act in the field. There is no question of the authority of the Board to resolve all controversy over coverage in a field where it had jurisdiction by statute.

"The Union contends that the Board should not assert in this case the jurisdiction which all agree it possesses. The Board should, so the Union contends, be bound by certain self-limiting standards gratuitously adopted by the Board itself. These standards, so announced, could not limit the jurisdiction conferred by Congress. The Board did not proclaim that, in all cases involving less monetary amounts than those contemplated by such regulations, the business in such amounts would never in a particular case have sufficient impact upon commerce to warrant the exercise of the powers of the Board. The purpose of these standards seems to have been to adopt a general rule of thumb so that the Board could concentrate its energies upon cause where the activities did have a substantial effect upon commerce as defined by the Act. It would not appear subversive if the Board had decided that the activities in extraordinary cases were such that there was a substantial effect upon commerce so defined, notwithstanding the traffic fell far below the standards in monetary value.

"Although this question has been discussed, it is not justiciable, in our opinion, unless either the activities fell outside the jurisdictional terminals set up by Congress or unjust discrimination were involved in

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