A.A.A. Air Duct Cleaning Co.

National Labor Relations Board - Board Decisions

Feb 20, 1968

169 N.L.R.B. 994 (N.L.R.B. 1968)

994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Chimney & Furnace Vacuum Cleaning Corp., and
Ernest Valdastri, Sr., d/b/a A. A. A. Air Duct
Cleaning Co. and Local 222, Metal , Miscellaneous
Sales, Novelty & Production Workers, affiliated
with International Production , Service & Sales
Employees Union . Case 29--CA-507
February 20, 1968
DECISION AND ORDER
BY MEMBERS FANNING, BROWN , JENKINS, AND
ZAGORIA
On November 7, 1966, Trial Examiner Gordon
J. Myatt issued his Decision in the above-entitled
proceeding, recommending that the complaint be
dismissed in its entirety on the ground that the
record fails to establish that the Respondent's
operations are sufficient to satisfy the Board's ju-
risdictional standards,' as set forth in the attached
Trail Examiner's Decision.2 Thereafter, the
General Counsel filed exceptions to the Decision
and a supporting brief.
The National Labor Relations Board has
reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The
Board has considered the Decision, the exceptions
and brief, and the entire record with respect to the
jurisdictional issue, and, for the reasons appearing
below, has decided not to accept the recommenda-
tion of the Trial Examiner that the complaint be
dismissed, and has decided to assert jurisdiction
herein.
The Trial Examiner concluded and we agree that
with the addition of the amount of service rendered
to two fuel companies (Harper Fuel and Gassman
Coal and Oil Co.), the Respondent has performed
services (direct and indirect outflow) amounting to
$49,411.72. The Trial Examiner further concluded
that $3,100 worth of services rendered to Interboro
General Hospital was not includible for jurisdic-
tional purposes because the record did not establish
that the hospital's purchases of drugs and supplies
came from outside New York State, and therefore
there was no proof that the hospital was engaged in
commerce.3 As he found the Respondent's opera-
tions did not meet the $50,000 direct or indirect
outflow standard,4 he recommended the complaint
be dismissed.
Evidence regarding the operations of Interboro
General Hospital, received by way of stipulation,
established that Interboro is a proprietary hospital
with 172 beds and with a gross annual revenue in
1965 of $2,547,000. In that year Interboro also
purchased drugs and supplies from the following
firms: Sherman Laboratories-$4,000; Wyeth
Laboratories - $1,990; Abbott Laborato-
ries-$8,465; Pfizer Laboratories - $8,423. All
purchases were made in New York State and the
hospital has no knowledge as to whether these sup-
plies were shipped from outside the State of New
York.
Since the Trial Examiner's Decision, the Board
issued its decision in Butte Medical Properties, 168
NLRB 266, in which it promulgated a minimum ju-
risdictional standard for proprietary hospitals of
$250,000 in gross annual revenues. In so doing, the
Board concluded that the operations of proprietary
hospitals generally have a substantial impact on
commerce, noting particularly the aggregate
purchases of supplies and materials, the insurance
payments by private health insurance companies,
and the expenditures of Federal funds under the na-
tional Medicare program. With the national
Medicare program now in existence 5 and the pay-
ments for health care benefits by national insurance
companies, many dollars travel to and from national
insurance companies and the Federal Government
which, in turn, make payments, directly or in-
directly to hospitals. In Butte, the Board further
noted that of $1,100,000 received in gross revenue,
50 percent was revenue received from various na-
tional health insurance agencies.
Inasmuch as Interboro's gross annual revenues
are approximately two and a half times that of
Butte, it is a reasonable assumption that its pay-
ments from national health insurance companies
alone would equal if not surpass those in Butte. In
addition, Interboro purchased some $22,878 in
drugs and supplies from four drug companies, at
least two of whom the Board has previously as-
serted jurisdiction over.6 In view of the foregoing,
we think it reasonable to assume that Interboro is
engaged in operations affecting commerce within
the meaning of the Act. We find, therefore, that
Respondent's services to Interboro in the amount
of $3,100 may properly be included in determining
whether Respondent's operations meet the Board's
jurisdictional standards.
With the addition of this $3,100, the combined
direct and indirect outflow exceeds the required
$50,000 and we find that the Respondent's opera-
tions meet the Board's jurisdictional standards.
Concededly, this finding rests in part on the as-
There is no contention , nor did the Trial Examiner find , that statutory
or legal jurisdiction does not exist.
2 The Trial Examiner's Decision makes no finding with respect to the
unfair labor practices alleged in the complaint herein.
3 He made a similar finding with respect to Parsons Hospital. In view of
our findings herein , we find it unnecessary to consider or pass on any ju-
risdictional facts concerning Parsons Hospital.
4 Siemons Mailing Service, 122 NLRB 81, 85.
6 As the national Medicare program did not become effective until July
1, 1966, any use of Medicare payments as a basis for jurisdiction would
necessarily be on a projected basis.
6 See Abbott Laboratories, 131 NLRB 569, and Chas. Pfizer & Co.,
Inc., 162 NLRB 1501.
169 NLRB No. 137
CHIMNEY & FURNACE VACUUM CLEANING CORP. 995
sumption that Interboro's operations affect com-
merce within the meaning of the Act. Although we
would not assert jurisdiction over Interboro without
a higher degree of proof as to its inclusion within the
Board's jurisdiction, we believe it entirely reason-
able to rely on this assumption in applying our ju-
risdictional standards to Respondent's operations
inasmuch as, entirely aside from the assumption,
the record reveals that Respondent is engaging in
commerce, or in operations affecting commerce,
within the meaning of the Act. Accordingly, we find
that it will effectuate the policies of the Act to assert
jurisdiction in this proceeding. We shall, therefore,
remand this proceeding to the Trial Examiner, for
resolution of the substantive issues raised by the
complaint.
ORDER
It is hereby ordered that this matter be, and it
hereby is, remanded to the Trial Examiner for the
preparation and issurance of a Supplemental Deci-
sion setting forth his findings of fact, conclusions of
law, and recommendations with respect to the un-
fair labor practices alleged in the complaint herein.
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
GORDON J. MYATT, Trial Examiner: Upon a charge
filed February 3, 1966, and an amended charge filed
February 16, 1966,1 by Local 222, Metal, Miscellaneous
Sales, Novelty & Production Workers, affiliated with In-
ternational Production, Service & Sales Employees
Union (hereinafter referred to as the Union), a complaint
was issued against Chimney & Furnace Vacuum Clean-
ing Corp., and Ernest Valdastri, Sr., d/b/a A.A.A. Air
Duct Cleaning Co. (hereinafter referred to as the Re-
spondent), on April 29, 1966. The complaint alleges that
the Respondent violated Section 8(a)(1), (3), and (5) of the
Act. The Respondent's answer, amended at the hearing,
admits certain allegations of the complaint but denies
Board jurisdiction over its operations and denies the com-
mission of any unfair labor practices. This case was heard
before me at Brooklyn, New York, on the following
dates: June 28 through July 1 and July 18, 1966. Briefs
have been received from the General Counsel and the
Respondent.
Upon the entire record in this case, including my
evaluation of the witnesses based on my observation of
their demeanor, and on the evidence contained in the
record, I make the following:
FINDINGS OF FACT
JURISDICTIONAL FINDINGS
Chimney & Furnace Vacuum Cleaning Corp., is a New
York corporation engaged in the business of cleaning
1 Unless otherwise noted, all dates herein refer to 1966.
s While it is not certain from this record as to which of the business con-
cerns purchases the tools , it is evident that there is no charge-back to any
of the companies for the use of the tools on any given job.
chimneys, air-conditioning ducts, boilers, and furnaces.
Ernest Valdastri, Sr., is the president of the corporation
and his son, Ernest Valdastri, Jr., is the secretary-trea-
surer. These individuals are the sole owners of the cor-
poration. Valdastri, Senior, is also the sole proprietor of
A.A.A. Air Cleaning Co. and A.A.A. Chimney & Fur-
nace Cleaning Co. The latter concerns are engaged in the
identical business as the corporation. All three enter-
prises use the same employees interchangeably, and the
same tools are used by the employees regardless of which
of the business concerns contracted for the job.2 All of
the companies3 occupy the same office space and main-
tain the shop where the tools and supplies and the em-
ployees' lockers are located. The shop is approximately
three blocks away from the office. Although each com-
pany has a separate telephone listing, calls are received in
the office on the same telephone instruments equipped
with buttons for the various lines. There are two office
employees who are designated bookkeepers for the firms.
Although the record is unclear as to whether both book-
keepers handle the records of all the companies, it is
evident that at least one bookkeeper performs services
for the A.A.A. companies as well as the corporation.4
The books and records of A.A.A. Air Duct Cleaning Co.,
and A.A.A. Chimney & Furnace Cleaning Co. are con-
tained in a single ledger and the records are kept as the
records of A.A.A. Chimney & Furnace Cleaning Co.
Checks made payable to A.A.A. Air Duct Cleaning Co.,
or to A.A.A. Chimney & Furnace Cleaning Co., are en-
dorsed by the latter company.
The employees receive their job assignments each
morning by means of job tickets brought to the shop by
one or the other of the Valdastris. The employees
generally work in teams and use their own automobiles in
traveling to jobsites. They are given an expense al-
lowance by the firms for the use of their cars. In a situa-
tion where the assignment requires the employees to di-
vide their workday between jobs contracted by the
A.A.A. companies on the one hand and the corporation
on the other, the firm responsible for the job which takes
up the major portion of the workday bears the entire cost
of the automobile allowance. Where the workday is
evenly divided between A.A.A. jobs and corporation
jobs, the automobile expense is shared by all of the enter-
prises.
In these circumstances , it is manifestly clear that Chim-
ney & Furnace Vacuum Cleaning Corp., A.A.A. Air
Duct Cleaning Co., and A.A.A. Chimney & Furnace
Cleaning Co., constitute a single employer for the pur-
poses of the Act. Blue Cab Company and Village Cab
Company, 156 NLRB 489; Miller Industries, Incor-
porated, 152 NLRB 810; Photype, Inc., 145 NLRB
1268. These business enterprises have common owner-
ship and control, they share the same premises and make
use of a common workshop, the firms utilize the same of-
fice personnel, they employ the same service employees,
and they apply identical conditions and terms of employ-
ment to these employees. In addition, it is equally clear
that A.A.A. Air Duct Cleaning Co., and A.A.A. Chim-
ney & Furnace Cleaning Co., are, for all intents and pur-
poses, the same business enterprise. While it is true, that
for business convenience, Valdastri, Senior, chooses to
employ two separate business names, the facts belie any
3 "Companies" is used here in its broad generic sense , and includes
the corporation as well as the A.A.A companies
4 This individual is Charles Hernandez , son-in-law of Valdastri, Senior,
and bookkeeper for the A.A.A. companies.
350-212 0-70-64
996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meaningful distinction between these companies. Indeed,
in response to an inquiry from the Regional Office for in-
formation concerning jurisdictional facts after the charge
was filed against A.A.A. Air Duct Cleaning Co., Valdas-
tri, Senior , submitted figures from the records of A.A.A.
Chimney & Furnace Cleaning Co. Thus, it is apparent
that even he considers both companies to be one and the
same . The mere fact that a charge was not filed against
A.A.A. Chimney & Furnace Cleaning Co. does not
preclude a determination that the allegations of the com-
plaint are applicable to both A.A.A. companies and
Chimney & Furnace Vacuum Cleaning Corp., as I find
that they are a single employer within the meaning of the
Act. Miller Industries, Incorporated, supra; Esgro, Inc.
and Esgro Valley, Inc., 135 NLRB 285.
The evidence discloses that the Respondent performed
services within the State of New York for various compa-
nies who are themselves in commerce. In addition, the
Respondent performed services outside the State of New
York in the amount of $735. The total value of the ser-
vices rendered within the State concerning which there is
no dispute amount to $45,358.72.5 When added to the
value of the services rendered outside the State of New
York, the Respondent's direct and indirect outflow total
$46,093.76.6
In addition to the above, the record discloses that the
Respondent performed services for establishments falling
into the following two categories: (1) fuel oil companies;
and (2) proprietary hospitals. As to the first category, the
Respondent asserts that there is no showing on this
record that the fuel oil companies are themselves in com-
merce; therefore, the amount of the services rendered to
these concerns cannot be included in determining ju-
risdiction . I reject this contention. One of the oil compa-
nies , Harper Fuel Oil Corp ., supplies fuel oil and services
to commercial and residential accounts in the city of New
York. Harper had a gross volume of business in 1965 in
the amount of $826,817.43. Harper's total purchases for
this period were $578,959.92, and 70 percent of these
purchases were made from the Shell Oil Company plant
located in Brooklyn, New York. The other oil company,
Gassman Coal & Oil Company, sells fuel oil and provides
heating equipment service to apartment houses located in
the city of New York. During 1965, Gassman had a gross
volume of business amounting to $800,000, and made
purchases of fuel oil in the amount of $150,000. All of
Gassman' s purchases were made from oil companies
located in the city of New York. In 1965, the Respondent
performed services valued at $2,269 for Harper and
$1,049 for Gassman. Common experience indicates that
New York is not a producer of petroleum or its by-
5 This amount is arrived at in the following manner:
American Airlines $ 3.204.87
Hertz Corporation 795.01
Rota Laboratories 255.00
Bulova Watch Company 655.20
Cities Service Oil Company 498.00
Western Electric Company 743.00
New York Telephone Company 11 , 004.00
United Transformer Corporation 529.76
New York University 475.00
City of New York:
Department of Real Estate 782.70
Department of Health 85.00
Fifth Avenue Hotel Associates 650.00
William A . White & Sons. Inc. 3,678.80
Flatbush Savings Bank 235.75
1. Miller & Sons 105.00
Gimbels Department Store 20.104.89
Tishman Realty & Construction Co. 531.75
Cross & Brown Company 1 025 00
TOTAL 3 '.72
products, such as fuel oil. Accordingly, I find that the
operations of Harper and Gassman in the city of New
York place these two firms in commerce under the Act.
N.L.R.B. v. Reliance Fuel Oil Corporation, 371 U.S.
224. Consequently, the value of the services rendered by
the Respondent to these enterprises constitutes indirect
outflow which is to be included in determining jurisdic-
tion. With the addition of the amount of services rendered
to the two fuel oil companies, the direct and indirect out-
flow of the Respondent amounts to $49,411.72. Thus, it
is readily apparent that the services performed by the
Respondent for the proprietary hospitals is critical in
determining whether the Respondent's operations satisfy
the Board's requirements for the assertion of jurisdiction.
The hospitals involved herein are Parsons Hospital and
Interboro General Hospital. There is no question but that
the hospitals come within a class which is exempt from
the Board's jurisdiction. Flatbush General Hospital, 126
NLRB 144. However, it is also beyond question that the
services rendered to these establishments by the Respond-
ent can properly be included as indirect outflow
provided the operations of the hospital are of the "mag-
nitude necessary for assertion of jurisdiction over com-
parable non-exempt organizations." Joseph Weinstein
Electric Corp., 152 NLRB 25, 28;7 Siemons Mailing Ser-
vice, supra. Cf. Carroll-Naslund Disposal, Inc., 152
NLRB 861.
The record shows that Parsons Hospital has 145 beds,
belongs to an association of private hospitals, had a gross
revenue of $1,830,694 in 1965, and purchased supplies
and drugs in the amount of $79,580 during the same
period. The hospital qualifies under a Blue Cross plan and
has an insurance contract, which became effective on
July 1, 1966, in connection with Medicare. Parsons
makes its purchases from firms in New York and there is
no evidence as to what amount of the purchases, if any,
involve items shipped from outside the State of New
York. In 1965, the Respondent performed services for
Parsons in the amount of $2,032.
The evidence concerning Interboro General was
received by way of a stipulation on the record between
counsel. The stipulation provides, in substance, that In-
teroboro is a proprietary hospital with 172 beds, and in
1965, had a gross revenue of $2,547,000. According to
the stipulation, Interboro's purchases in 1965 included
drugs and supplies received from the following firms:
Sherman Laboratories $4,000
Wyeth Laboratories 1,990
Abbott Laboratories 8,465
Pfizer Laboratories 8,423
6 In its brief, the Respondent takes the position that the services
rendered outside the State ($735) cannot be added to the value of the
services performed within the State for concerns which are in commerce.
This postition is without merit , as it is based on the mistaken premise that
the latter services constitute indirect inflow rather than indirect outflow.
Siemons Mailing Service, 122 NLRB 81.
' Although the Weinstein case involved services to a voluntary rather
than a proprietary hostital , I do not consider this distinction to be
meaninglful . Both types of hospitals are exempt from jurisdiction under
current Board cases.
CHIMNEY & FURNACE VACUUM CLEANING CORP.
All purchases were made in New York, and the hospital
has no knowledge as to whether these supplies were
shipped from outside the State of New York. Nor did the
General Counsel provide such proof from any other
source. In 1965, the Respondent performed services for
Interboro in the amount of $3,100.
The General Counsel contends that the hospitals
satisfy the Board's retail standard of $500,000. While he
concedes that there is no evidence in the record that the
purchases of the hospitals originate outside the State of
New York, he contends that the Board would assert ju-
risdiction over these institutions but for their exempt
status. On the basis of this record, I do not agree. Assum-
ing for the moment, that the retail standard is the standard
that the Board would apply here in order to ascertain
whether the operations of the hospitals were of "the mag-
nitude necessary for assertion of jurisdiction over com-
parable non-exempt organizations," the General Coun-
sel's proof in this case still fails in an essential respect. In
Carolina Supplies," the case in which the current retail
standard was established, the Board stated that it would
"assert jurisdiction over all retail enterprises which fall
within its statutory jurisdiction [emphasis supplied] and
which do a gross volume of business of at least $500,000
per annum." In the instant case there is no showing that
any of the purchases by the hospitals originated from
points outside the State of New York. That such a show-
ing is necessary is evident, even from a reading of the
cases relied upon by the General Counsel. In the
Weinstein case, where the Trial Examiner found services
to a voluntary hospital to be indirect outflow, the
evidence demonstrated that the hospital received goods
and supplies which were shipped across State lines.9
Similarly, in Carroll-Naslund, where services to a mu-
nicipality were involved, the evidence indicated that the
municipality purchased goods and supplies from outside
tof the State in which it was located.10l,The record here is
barren of any such evidence. i i
The General Counsel also stresses the fact that Par-
sons Hospital is a member of an association of private
hospitals, and that one of the association members is Flat-
bush General Hospital; this establishment was involved
in a prior Board proceeding wherein the Board ruled that
it would not assert jurisdiction over proprietary
hospitals.12 There is no showing on this record of the pur-
pose for which the association exists, i.e., whether the as-
sociation bargains on behalf of the member hospitals con-
cerning employees, or whether the association makes
purchases across State lines of drugs and supplies on be-
half of member hospitals. Indeed, the only evidence is
that Parsons and Flatbush General are both members of
the association. Moreover, if it is the intention of the
General Counsel to rely upon the jurisdictional facts ad-
duced in the Board proceeding involving' Flatbush
General, this reliance is misplaced. The facts in that case
pertained to the year 1959, and in my judgment are too
remote and speculative to be of probative value in this
proceeding.
Finally, the General Counsel contends that even if the
services to the proprietary hospitals are not to be in-
8 Carolina Supplies and Cement Co, 122 NLRB 88,89
1 Joseph Weinstein Electric Corp., supra, 28.
10 Carroll-Naslund Disposal, Inc , supra, 862
11 This is not to suggest that the General Counsel must show purchases
997
cluded as indirect outflow, jurisdiction should be asserted
nonetheless under the Board's ruling in Tropicana
Products, Inc., 122 NLRB 121. Again I do not agree.
The ruling in that case was based on the willful refusal of
the employer to provide the Board agents with the infor-
mation necessary for a jurisdictional determination. Such
is not the case here. At one point in the hearing, Valdas-
tri, Senior, testifying under Rule 43(b), professed not to
have additional records in connection with the work per-
formed by his employees. Under examination by his own
counsel, however, he recalled that he kept a personal card
file containing this same information. I admonished the
Respondent and his attorney for what appeared to me to
be less than complete disclosure in response to the
General- Counsel's subpena for the Respondent's books
and records. I also refused to allow examination on the in-
formation contained on the cards until the General Coun-
sel specifically waived any objection thereto. As it
developed, the information on the cards was inculpatory
rather than exculpatory, and provided further avenues of
exploration by the General Counsel on the issue of ju-
risdictional facts. Upon reflection, and after a rereading
of this portion of the record, I am persuaded that the
Respondent did not deliberately withhold information
concerning the operations of his business enterprises. All
of the Respondent's records, including the card files,
were available to the General Counsel at the hearing.
After the issue was raised, the card file was examined and
the information contained thereon was utilized by the
General Counsel. Accordingly, I find that the rule of
Tropicana Products does not apply to the facts of this
case. The most that can be said is that the Respondent
employed a poor system of recordkeeping, but that is not
the issue here.
In sum, I am constrained to conclude that the General
Counsel has failed to establish that the Respondent's
operations satisfy the Board's standard for asserting ju-
risdiction in this case.
CONCLUSIONS OF LAW
1. Local 222, Metal, Miscellaneous Sales, Novelty &
Production Workers, affiliated with International Produc-
tion, Service & Sales Employees Union, is a labor or-
ganization within the meaning of Section 2(5) of the Act.
2. Chimney & Furnace Vacuum Cleaning Corp., and
Ernest Valdastri, Sr., d/b/a A.A.A. Air Duct Cleaning
Co. and A.A.A. Chimney & Furnace Cleaning Co. con-
stitute a single employer within the meaning of the Na-
tional Labor Relations Act.
3. The Respondent herein is not engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and upon the entire record in this case, I
recommend that the complaint herein be dismissed in its
entirety.
of goods or supplies from outside the State in the amount of $50,000 by
the hospitals , but, in my opinion , it is necessary to show some volume of
such purchases in an amount more than de minimus.
12 Flatbush General Hospital, supra