United States Book Exchange, Inc.

National Labor Relations Board - Board Decisions

Oct 24, 1967

167 N.L.R.B. 1028 (N.L.R.B. 1967)

1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United States Book Exchange , Inc.,t and Office and
Professional Employees International Union, Local
No. 2, AFL-CIO, Petitioner
United States Book Exchange , Inc., Employer-Peti-
tioner and Office and Professional Employees In-
ternational Union , Local No. 2, AFL-CIO. Cases
5-RC-5934 and 5-RM-598
October 24, 1967
DECISION AND ORDER
BY MEMBERS BROWN ,J ENKINS, AND ZAGORIA
Upon separate petitions duly filed under Section
9(c) of the National Labor Relations Act, as
amended, a consolidated hearing was held before
Hearing Officer William I. Shooer of the National
Labor Relations Board. The Employer and the
Union have filed briefs in support of their positions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby af-
firmed.
Upon the entire record in this case, including the
briefs, the Board finds:
The Union seeks a unit of all employees of
United States Book Exchange, Inc. (hereinafter
referred to as USBE) at its offices and warehouse
in Washington, D.C. The appropriateness of the
unit was stipulated and the sole issue before the
Board is whether jurisdiction should be asserted
over the Employer'2
In February 1948, USBE was incorporated
under the laws of the District of Columbia. Its Cer-
tificate of Incorporation states that the corporation
was not organized for profit, and prohibits it from
making or declaring dividends and from having any
capital stock. The business and object of the cor-
poration was stated to be:
The promotion of the distribution and in-
terchange of books, periodicals. and other
scholarly materials among libraries and other
educational and scientific institutions of the
United States, and between them and libraries
and institutions of other countries, and to that
end the accumulation of a stockpile of books,
periodicals and other materials suitable and
useful in filling the various needs of libraries
and institutions throughout the world.
1 The caption reflects the corrected name of the Employer and the
Union
2 As the Board has plenary jurisdiction herein because the case arises
in the District of Columbia, we are not here concerned with the question
In the year of its incorporation, USBE was ad-
judged by the Commissioner of Internal Revenue
to be exempted from Federal income tax, and it has
retained this exemption.
As indicated by the statement of purpose in its
Certificate of Incorporation, the USBE is engaged
in the exchange of books and periodicals among its
members. There are currently approximately 1,530
members, of which 800 are libraries connected with
universities and colleges. The remaining members
include Federal Government libraries, public libra-
ries, and special libraries, all of which must be en-
gaged in rendering a public service to become a
member library. Member libraries agree to donate
their surplus books and publications to USBE,
which catalogues the material and sends periodic
lists to the member libraries. Member libraries have
the privilege of drawing on the stock of donated
books and other publications held by USBE.
The Employer's gross annual revenue is approxi-
mately $330,000. Membership fees of $12 a year
paid by all member libraries account for less than
$20,000. The remainder of its income is derived
from service fees charged its members for handling
and filling request orders.' The service charge is
paid on each publication received by a member
requesting it and is a fixed amount unrelated to the
value of the publication itself.
Prior to 1963 a substantial part of USBE's annual
income came from the Agency for International
Development's payment of handling fees for certain
foreign libraries. During the period of AID support,
the Employer had 1,700 members abroad; cur-
rently, only 200 members are institutions outside
the United States and Canada. Since 1963 the Em-
ployer has not received extensive Federal support.
In 1962 the Union herein was certified as the bar-
gaining agent for approximately the same group of
USBE employees which it currently seeks to
represent. The certification followed an election in
Case 5-RC-3824 held pursuant to a stipulation for
certification upon consent election. At that time the
Employer conceded the Board's jurisdiction when
it entered into the stipulation.
The Union asserts that the Employer is estopped
from raising the issue of jurisdiction herein because
of the stipulation entered into by the Employer in
1962. However, the Employer's earlier stipulation
that it was "engaged in commerce within the mean-
ing of 2(6)" of the Act, does not foreclose the Board
from deciding anew the jurisdictional issue raised
herein.
Section 2(2) of the Act, which defines the term
"employer," does not expressly exclude nonprofit
corporations. However, the legislative history of
that section shows clearly that when the 1947
of whether the Employer meets our monetary jurisdictional standards
J Additionally, $2,000 to $2,500 s received annually from the sale of
unwanted or damaged books as pulp
167 NLRB No. 149
UNITED STATES BOOK EXCHANGE, INC.
amendments were enacted, Congress was aware of
the Board's policy that "only in exceptional circum-
stances and in connection with purely commercial
activities of such [nonprofit] organizations have
any of the activities of such organizations or of their
employees been considered as affecting commerce
so as to bring them within the National Labor Rela-
tions Act."4
Since 1947 the Board has used the above-quoted
legislative history as a "guide, if not a mandate" in
determining whether or not to assert jurisdiction
over activities of nonprofit corporations, and has
constantly applied the rule that jurisdiction would
be asserted where the particular activities involved
are commercial in nature in the generally accepted
sense, but that jurisdiction would be declined over
activities noncommercial in nature and intimately
connected with the charitable purpose or educa-
" H Rep No 510, 80th Cong , 1st Sess 32, 1 Leg Hist 505 at 536
(1947) See also Office Employees International Union, Local 11 v
N L R B , 353 U S 313, 318-319, and Trustees of Columbia University
.1029
tional activities of the institution. 5
From the facts set forth above, we conclude that
although USBE is not itself an educational institu-
tion nor a subdivision of any such institution, it is
directly and exclusively engaged in the dissemina-
tion of knowledge and is an integral factor in the
education system. Viewed thusly, the Employer's
operation cannot be considered a purely commer-
cial activity. We conclude, therefore, that it would
not effectuate the purposes of the Act to assert ju-
risdiction herein. Accordingly, we shall dismiss the
petitions.
ORDER
It is hereby ordered that the petitions filed herein
be, and they hereby are, dismissed.
in the City of New York, 97 NLRB 424
5 Trustees of Columbia University, ibid, cf Camp Baumann Buses,
Inc, 142 NLRB 648, Brothers Coach Corp, 158 NLRB 931