NLRB v. Sightseeing Guides & Lecturers Union Local 20076

• Decision Date: 09 November 1962
• Docket Number: No. 34,Docket 27417.,34
• Citation: 310 F.2d 40
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SIGHTSEEING GUIDES AND LECTURERS UNION LOCAL 20076 OF GREATER NEW YORK, AFL-CIO, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

310 F.2d 40 (1962)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SIGHTSEEING GUIDES AND LECTURERS UNION LOCAL 20076 OF GREATER NEW YORK, AFL-CIO, Respondent.

No. 34, Docket 27417.

United States Court of Appeals Second Circuit.

Argued October 15, 1962.

Decided November 9, 1962.

Stuart Rothman, Gen. Counsel, N. L. R. B., Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallett-Prevost, Asst. Gen. Counsel, Melvin Pollack, Peter Giesey, Attys., N. L. R. B., for petitioner.

Abramson & Lewis, New York City (Leonard Greenwald, New York City, of counsel), for respondent.

Before WATERMAN, FRIENDLY and MARSHALL, Circuit Judges.

WATERMAN, Circuit Judge.

The National Labor Relations Board has petitioned, pursuant to Section 10(e) of the National Labor Relations Act, as amended 29 U.S.C. § 160(e), for enforcement of a Board order issued against Sightseeing Guides and Lecturers Union Local 20076 of Greater New York, AFL-CIO. The decision and order of the Board are reported at 133 N.L.R.B. 985 (1961).

The Board found that respondent Union violated Section 8(b) (1) (A) and (b) (2) of the N.L.R.A., 29 U.S.C. § 158(b) (1) (A) and b(2). Assuming the Board's jurisdiction over the practices involved, this finding was manifestly justified by the evidence.

In 1959, the Union entered into identical collective bargaining agreements with six employer-members of the New York Sightseeing Bus Association. The agreements covered the employment of guide-lecturers until March 1, 1961, and provided, with respect to union security, as follows:

"Paragraph 6(a): The Company agrees to accept business only from and employ only members of the Union in good standing; (b) The Company agrees to call upon the Union first for each additional lecturer as they may require. The Company shall have an absolute preference in the hiring of additional lecturers. When the Union is unable to supply such additional lecturer, the Company may employ such help as they may require. In the event that such help is employed for a period of 2 weeks, the continuation of such help in the Company\'s employ shall be conditional thereafter upon admission of such help to union membership."

It is evident that this provision exceeded the limited form of union security permitted in the proviso to Section 8(a) (3) of the Act. N. L. R. B. v. Gottfried Baking Co., 210 F.2d 772 (2 Cir., 1954); Red Star Express Lines v. N. L. R. B., 196 F.2d 78, 81 (2 Cir., 1952). Assuming, again, the jurisdiction of the Board, the mere retention by the Union of the preferential hiring clause in its contract during the six months preceding the filing of charges against it constitutes a violation of Section 8(b) (1) (A). N. L. R. B. v. Gottfried Baking Co., supra. But the Union did more. It actively enforced the provision against one Irving Scher by denying him admission to the Union, despite his tender of Union dues, and thereby the employer, ABT Sightseeing Tours, Inc., was required to discharge him from its employ. It follows that respondent "caused * * * an employer to discriminate against an employee in violation of subsection (a) (3)," thereby violating Section 8(b) (2) of the Act. N. L. R. B. v. National Maritime Union of America, 175 F.2d 686 (2 Cir., 1949), cert. denied, 338 U.S. 954, 70 S.Ct. 492, 94 L.Ed. 589 (1950).

Respondent denies the Board's jurisdiction over these labor practices, however, on two grounds: (1) the several employers, save, perhaps, for Cross Roads Sightseeing Corp., were not doing business in interstate commerce; (2) even if in interstate commerce, the volume of business that each of them did was not large enough to bring any one of them within the Board's announced standards for assuming jurisdiction.

The Companies here involved are engaged in operating bus sightseeing tours within the City of New York. A significant portion of their business is secured from out-of-town travel agents and railroad agents. One of the companies, Cross Roads Sightseeing Corp., paid more than $100,000, during the year prior to the hearing below, to two New Jersey firms for the rental of buses. The vehicles are garaged and serviced in New Jersey and dispatched to New York City when ordered by Cross Roads.

These operations, when taken together, clearly affect interstate commerce within the broad interpretation of that statutory requirement. International Brotherhood of Electrical Workers, Local 501 v. N. L. R. B., 181 F.2d 34, 36-37 (2 Cir., 1950), aff'd, 341 U.S. 694, 71 S.Ct. 954, 95 L.Ed. 1299 (1951). Though no one of the companies had annual revenues satisfying the Board's self-imposed $500,000 minimum standard for assumption of jurisdiction over retail concerns, Caroline Supplies and Cement Co., 122 N.L. R.B. 88, the Board found...