Tom Thumb Stores, Inc.

In the Matter of Toni TIIUMB STORES, INC.; EMPLOYER and RETAIL GROCERY CLERKS INTERNATIONAL AssoCIATION, A. F. L., LOCAL 368, PETITIONER In the Matter of TOM THUMB STORES, INC., EMPLOYER and BUILDING SERVICE EMPLOYEES INTERNATIONAL UNION, A. F. L., LOCAL 292,. PETITIONER Cases Nos. 16-RC-400 and 16-RC-417.-Decided December 16, 191.9 DECISION AND ORDER Upon separate petitions duly filed, an order of the Regional Director consolidating the above cases was made on August 12, 1949. A hear- ing on the consolidated cases was. held before James R. Webster, hear- ing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. The business of the Employer : The Employer, a Texas corporation, is engaged in the retail grocery business and operates eight retail stores in the vicinity of Dallas, Texas. During a 13-week period ending June 30, 1949, which is representative of the Employer's operations, its purchases of food products totaled $761,814.78, of which $33,323.11 was for meat and groceries purchased from sources, and shipped from points, outside the State of Texas. The record does not indicate what portion of its remaining purchases, made from within-the- State wholesalers, orig- inates outside the State. The Employer operates no warehouse or wholesale plant of its own. All its sales are made locally. The employer contends, contrary to the Petitioners' argument, that 'it is not engaged in commerce within the meaning of the National Labor Relations Act. Although we do not find that the Employer's operations are unrelated to commerce, we do not believe that the effect of such operations on interstate commerce is so substantial that we should assert jurisdiction over an enterprise of the character here involved. 1 It has been the policy of the Board, in cases involving 1 Hom-Ond Food Stores, Inc., 77 NLRB 647, distinguished but not overruled in Providence Public Markets Company, 79 NLRB 1482 ( to which Chairman Herzog and Member Gray dissented at pages 1485 and 1486, and which they still believe was wrongly decided). 87 NLRB No. 109 1062 TOM THUMB STORES, INC. 1063 various types of retail chain stores located in a. single State, to decline to exercise jurisdiction on the ground that such operations are essen- tially local in character, except where there are conspicuously large amounts of imports from outside the State. We do not believe that the amount of the imports here is sufficient to bring the case within the latter group of cases which follow Providence Public Markets Co. Accordingly, we shall dismiss the petitions.' ORDER Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the National Labor Relations Board hereby orders that the petitions for investigation and certification filed herein be, and they hereby are, dismissed. MEMBER REYNOLDS, dissenting : I cannot agree with the action of my colleagues in declining to assert jurisdiction in this case, because I regard it as indistinguishable from and controlled by Providence Public Market Compa'ty 2 and sub- sequent Board decisions 3 involving retail food stores and groceries. The majority relies on the Hom-Ond case' as justification for its refusal to exercise discretion in favor of taking jurisdiction. In my opinion the ultimate effect of our Providence decision has been to overrule Hom-Ond. It is true that we distinguished Hom-Ond in Providence primarily on the ground that in the former, although a portion of the goods purchased originated outside the State, no inter- state purchases were shipped directly to the employer, whereas in the latter the record failed to "negate the inference" that a substantial amount of the goods purchased which originated outside the State was shipped to the employer directly across State lines. I do not believe, however, that the succeeding cases which have consistently reaffirmed the Providence decision have perpetuated this basis for determining whether or not to assert jurisdiction.5 On the contrary, I interpret these Board decisions as precedents for taking jurisdiction of retail chain food stores where a substantial amount of the purchases involved are shipped to the particular employer either directly or 2 See footnote 1, supra. 3 Bettendori's Select Foods, Inc., 85 NLRB 919; Colonial Stores, Incorporated, 84 NLRB 558 ; Florida Wholesale Grocery Co ., Inc., d/b/a Food Fair Stores, 83 NLRB 852; Tanner-Brice Company, 82 NLRB 477 ; Piggly-Wiggly Corporation, 82 NLRB 267; Tip Top Grocery Company, 81 NLRB 955; Margaret Ann Food Stores, Inc., 78 NLRB 852. 4 See footnote 1, supra. I In this connection , I am unable to find any case involving chain retail food stores since Providence which cites Hom-Ond as authority for refusing to assert jurisdiction. 1064 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD indirectly in interstate commerce s Considering the instant case in this posture, I note that the Employer purchased food products total- ing $761,814.78 of which $33,323.11 consisted of goods shipped directly across State lines. Although the record does not indicate the exact quantity of goods purchased by the Employer which originated out- side the State of Texas, in view of the total amount of purchases and the nature of the Employer's business,' it is a fair presumption that the amount was substantial. Thus, it appears to me that con- sistency with past Board decisions requires the exercise of jurisdiction in this case. Moreover, assuming that the "substantial amount of direct ship- ments" test enunciated in the Providence case is still deemed applicable by my colleagues, I do not believe that it makes their position any more tenable. The goods shipped directly to this Employer across State lines are approximately 5 percent of its total purchases. A perusal of other Board decisions to ascertain whether this figure is "substantial" reveals that we have asserted jurisdiction in cases where the amounts of direct shipments were approximately 7 percent, 10 percent, 15 percent, and 22 percent.s It would seem that if these percentage figures are considered "substantial" so should the 5 percent figure in this case. In view of the foregoing, whether the facts in the instant case are considered in the light of my interpretation of past Board precedents since the Providence case or in the light of the "direct shipment" test applied in that case, I can perceive of no valid reason for declining to exercise jurisdiction over the present Employer. In the Bettendorf's, Tanner-Brice, Piggly -TViggly, and Tip Top cases, footnote 3, supra, the Board , in addition to indicating the amounts or percentages of goods shipped directly to the particular employer from points outside the State, specifically mentioned and considered the amounts or percentages of goods which originated outside the State and were shipped indirectly to the employer . In the Margaret Ann and Colonial Stores cases, footnote 3, supra, the Board referred only to the amounts of goods purchased which origi- nated outside the State . Apparently the records in those cases did not indicate the amounts of direct shipments , if any . In the Florida case, footnote 3, supra, although the decision does not detail the commerce factors, the record indicated only the amount of goods purchased which originated outside the State and the Board asserted jurisdiction on this basis. 7 Presumably the Employer sells national brand canned goods and food products and perishable produce which are obtained initially from outside the State. 8 Bettendorff's case, footnote 3, supra-7 percent ; Peter Muscarelle et al., d/b/a Mus- carella Company, 87 NLRB 120-10 percent ( although this case involved a buyer and seller of bananas at wholesale the Providence case is cited as authority for taking jurisdic- tion ) ; Piggly-Wiggly case, footnote 3, supra-15 percent ; Tanner-Brice case; footnote 3, supra-22 percent. This is, of course , based upon the premise that the "direct shipment" test alone was being applied in all these cases. As a matter of fact in each of them men- tion was also made of the amounts of indirect shipments.