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National Labor Relations Board v. Le Fort Enters., Inc.

United States Court of Appeals, First Circuit

July 1, 2015

NATIONAL LABOR RELATIONS BOARD, Petitioner,
v.
LE FORT ENTERPRISES, INC. d/b/a MERRY MAIDS OF BOSTON, Respondent

Page 208

PETITION FOR ENFORCEMENT OF AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD.

Richard F. Griffin, Jr., General Counsel, Jennifer Abruzzo, Deputy General Counsel, John H. Ferguson, Associate General Counsel, Linda Dreeben, Deputy Associate General Counsel, Robert J. Englehart, Supervisory Attorney, and David A. Seid, Attorney, on brief for petitioner.

Scott Kamins and Offit Kurman, PA on brief for respondent.

Before Howard, Chief Judge, Selya and Kayatta, Circuit Judges.

OPINION

Page 209

KAYATTA, Circuit Judge.

Le Fort Enterprises, Inc. (" Le Fort" ) does business as a " Merry Maids" franchise, providing cleaning services, primarily to homeowners in and around Boston, Massachusetts. Le Fort serves approximately 500 customers, generates annual sales in excess of $1,000,000, and employs twenty-nine housekeepers. Some of the housekeepers decided to try to unionize. Over Le Fort's objection, the National Labor Relations Board (" the Board" ) asserted jurisdiction and conducted a secret-ballot election among the twenty-nine housekeepers. By a vote of 16 to 12 (with one challenged ballot), the employees voted to select the International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 7, AFL-CIO (" the Union" ) as their exclusive collective-bargaining representative. Rejecting Le Fort's challenge to the election, the Board certified the Union in accord with the employees' vote. Le Fort then refused to bargain with the Union, triggering a charge of unfair labor practices and a Board order directing Le Fort to bargain. See Le Fort Enters., Inc., 360 N.L.R.B. No. 119 (May 22, 2014). The Board now petitions this court pursuant to 29 U.S.C. § § 159(d) and 160(e) to enforce the Board's unfair labor practice order. For the following reasons, we reject Le Fort's objections to the Board's jurisdiction and the election, and grant the Board's petition.

I. The Board's Jurisdiction

Congress empowered the Board " to prevent any person from engaging in any unfair labor practice . . . affecting commerce." 29 U.S.C. § 160(a). " Congress intended to and did vest in the Board the fullest jurisdictional breadth constitutionally permissible under the Commerce Clause." NLRB v. Reliance Fuel Oil Corp., 371 U.S. 224, 226, 83 S.Ct. 312, 9 L.Ed.2d 279 (1963) (per curiam); accord NLRB v. Living & Learning Ctrs., Inc., 652 F.2d 209, 212-13 (1st Cir. 1981). Le Fort does not claim that it falls outside that broad statutory grant of jurisdiction.

Le Fort relies instead on the Board's self-imposed adoption of discretionary limits on the exercise of its jurisdiction. See Siemons Mailing Serv., 122 N.L.R.B. 81, 82-83 (1958). Adopted in order to conserve and efficiently deploy the Board's limited resources, see id., these limits are expressed as minimum levels of business activity, with differing benchmarks for retail and non-retail employers. See Bussey-Williams Tire Co., Inc., 122 N.L.R.B. 1146, 1147 (1959). The Board exercises jurisdiction over a retail enterprise if it has a gross annual business

Page 210

volume of at least $500,000. NLRB v. Pizza Pizzaz, Inc., 646 F.2d 706, 707 (1st Cir. 1981) (per curiam) (citing Carolina Supplies & Cement Co, 122 N.L.R.B. 88, 89 (1958)). The Board exercises jurisdiction over a non-retail enterprise if its gross outflow or inflow of commerce across state lines is at least $50,000. NLRB v. Somerville Const. Co., 206 F.3d 752, 755 (7th Cir. 2000); Siemons Mailing Serv., 122 N.L.R.B. at 84-85.

The Board found Le Fort to be a retail enterprise because its sales were " sales to a purchaser who desires 'to satisfy his own personal wants or those of his family or friends.'" J.S. Latta & Son, 114 N.L.R.B. 1248, 1249 (1955) (quoting Roland Elec. Co. v. Walling,326 U.S. 657, 674, 66 S.Ct. 413, 90 L.Ed. 383 (1946)). With annual sales of over $1,000,000, Le Fort easily fits within the Board's jurisdiction, even as limited by the Board, if it is indeed a retail enterprise. Le Fort therefore argues that the Board erred in classifying it as a retail ...


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