Rogers Bros. Wholesalers

604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in violation of instructions of the Board's agent. The Regional Di- rector's investigation revealed that the Board's agent issued instruc- tions to the parties as to their behavior at the polling place and within the period covered by the election, which took place between 8 a. in. and 12 noon; that there was no evidence of instructions prohibiting electioneering prior to the election; and that the CIO officials distrib- uted to the employees at the employees' entrance to the plant, just prior to the election, a 3 x 5 card on which was printed an electioneering poem. He furthermore found that the CIO representatives were not in the vicinity of the polls during the polling period, and did not accost any of the employees on their way to and from the polls, a distance of 21/2 blocks from the plant. The Regional Director concluded that the Intervenor did not thereby interfere with the election or with the free choice of the employees. In its exceptions, the Employer argues that the Regional Director's report was erroneous because he failed to interview certain persons who were present when the oral election instructions were given by the Board agent. However, the Employer has offered no facts to rebut the Regional Director's conclusions nor has it notified the Board of the nature of the evidence it alleges the Regional Director failed to consider. Accordingly, we find the Employer's exceptions lacking in merit. We hereby adopt the Regional Director's recommendations and overrule the Employer's objections to the election. As the tally of ballots shows, a majority of the ballots were cast for the Intervenor. We shall therefore certify it as the exclusive bargain- ing representative of all the employees in the appropriate unit. [The Board certified Amalgamated Clothing Workers of America, CIO, as the designated collective-bargaining representative of the Em- ployer's production and maintenance employees at the Employer's Lit- tle Rock, Arkansas, plant in the unit found to be appropriate.] BEN ROGERS, VICTOR J. ROGERS, DR. S. J. ROGERS AND DR. N. JAY ROGERS,' PARTNERS D/B/A ROGERS BROS. WHOLESALERS and OPTICAL WORKERS UNION, LOCAL 24859, AFL BEN ROGERS, VICTOR J. ROGERS, DR. S. J. ROGERS AND DR. N. JAY ROGERS, PARTNERS D/B/A ROGERS BROS. WHOLESALERS and OPTICAL WORKERS UNION, LOCAL 24859, AFL. Cases Nos. 39-CA-279 and 39-RC-467.' October 27,1954 Decision and Order On August 14, 1953, Trial Examiner William R. Ringer issued his Intermediate Report in the above-entitled proceeding, finding that 110 NLRB No. 75. ROGERS BROS. WHOLESALERS 605 the Respondents had engaged in and were engaging in certain unfair labor practices, and recommending that they cease and desist there- from and take certain affirmative action. He further found that Re- spondents had not engaged in certain other unfair labor practices alleged in the amended complaint and recommended dismissal of those allegations as well as the petition in the representation case. There- after, the Respondents filed exceptions to the Intermediate Report and a supporting brief.' The Board has reviewed the rulings made by the Trial Examiner at the hearing, to the extent pertinent to this decision, and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and brief, and the entire record in these cases, and hereby adopts the findings and conclusions of the Trial Examiner to the limited extent that they are consistent with this Decision and Order. Respondents operate an optical laboratory in Beaumont, Texas. From May 1, 1951, to April 30, 1952, Respondents received materials and equipment directly from outside the State, valued at $419,599.34 or about 85 percent of the minimum amount required by the Board to assert jurisdiction based on direct inflow, under the Board's jurisdic- tional plan promulgated in 1950. During the same period, Respond- ents made purchases indirectly from outside the State, worth $349,- 912.70 or about 35 percent of the minimum indirect inflow requirement of the 1950 plan. Virtually all Respondent's sales were made to cus-, tomers within the State. Although neither the direct nor the indirect volume was alone sufficient to warrant the exercise of jurisdiction, the Board, in the representation case involving this Company,2 combined the above percentages and, as they together totalled over 100 percent, the Board assumed jurisdiction under the formula in The Rutledge Paper Products, Inc., 91 NLRB 625.3 In asserting jurisdiction in the present consolidated cases, the Trial Examiner apparently relied on the previous representation decision herein. As indicated in the Board's recent decision in Jonesboro Grain Dry- ing Cooperative, 110 NLRB 481, the Rutledge case has been over- ruled and we will no longer accumulate the Board's independent juris- dictional standards in order to assert jurisdiction. As the operations of the Respondents, so far as the present record discloses, fall short 1 The Respondents also requested oral argument . This request is denied as the record, including the exceptions and brief, adequately presents the issues and the positions of the parties 2 July 2, 1952 , not reported in printed volumes of Board Decisions and Orders. 8 The Rutledge decision required the assertion of jurisdiction over a company which does not meet any of the individual jurisdictional tests established by the Board, pro- vided the combined percentages of the requirements of certain other tests equal more than 100 percent 606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the Board's other jurisdictional standards, we shall dismiss the amended complaint and the representation petition' [The Board dismissed the complaint in Case No. 39-CA-279 and the petition in Case No. 39-RC-467.] MEMBER MURDOCK, dissenting : I agree with Member Peterson's observation that it appears that the Respondents and Texas Optical Company are closely integrated and may well be treated as a common employer for jurisdictional purposes. As these cases were heard at a time when the Rutledge 5 standard was still in force, it was unnecessary to further develop the facts concern- ing this or other jurisdictional factors in the cases inasmuch as jurisdic- tion was clear under that standard. In these circumstances, the ma- jority's action, after overruling the Rutledge decision, in declining to remand the case for further development of the facts as to the Respond- ent's operations or the relationship between Respondents and Texas Optical Company, is, in my opinion, an injudicious and unwise exercise of discretion. This is especially so in view of the fact that the parties at the hearing were unaware that the Board, many months later, would drastically change the standards of jurisdiction upon which the facts at the hearing were adduced. However, my disagreement with the majority extends also to more basic questions. In the Board's July 1 and 15 press releases, it stated that they were overruling the Rutledge formula in its entirety. The revised jurisdictional standards contained in the press releases were, presumably, to be explicated and documented in "lead" decisions for, as the press release of July 1, stated, "The changes indicated were made by majority vote in specific cases." Unfortunately that explica- tion and documentation has been either fragmentary or nonexistent particularly with regard to the abandonment of the Rutledge formula; an action merely referred to in passing in Jonesboro Grain Drying, 110 NLRB No. 67, Which in no way concerned its application. I in- dicated in my dissenting opinion in Jonesboro, that it would be more appropriate to examine and comment upon the overruling of the b By letter dated September 20, 1954, the Chai ging Union in effect moved to reopen the record for additional commerce data, if the Board contemplated dismissing on jurisdic- tional grounds. However, the Union adverts to no specific-facts which would warrant our present assertion of jurisdiction . Accordingly, the motion is denied. We perceive no compelling reason for reopening the record to obtain jurisdictional data concerning Texas State Optical Company, a chain of intrastate retail outlets oper- ated by two partners of Rogers Bros Wholesalers. The present record indicates that substantially all the materials used by Texas Optical are received from Respondents, and the sales of Texas Optical, in view of the retail nature of its operations, are apparently made locally. Consequently, even if Texas Optical constituted a common employer with Respondents and even if the companies were considered together for jurisdictional pur- poses, the likelihood that the jurisdictional data of Texas Optical would alter our deter- mination herein is too remote to warrant remanding these cases 5 The Rutledge Paper Products, Inc., 91 NLRB 625. ROGERS BROS . WHOLESALERS 607 Rutledge formula in a case which presented that issue and I shall accordingly do so herein. As I have previously stated in full, in my dissent in Breeding Transfer Company, 110 NLRB 493, my basic objections to the entire body of new standards as conflicting with the Act and the legal responsibilities which it imposes on this Agency, as involving the exercise of legislative power to reallocate authority be- tween the Federal Government and the States, and as without justi- fication based on budget limitations or other administrative necessity, I shall, however, restrict this opinion to a discussion of the specific fac- tors applying to the rejection of the Rutledge doctrine under the new standards. As revealed by the record, from May 1, 1951, to April 30, 1952, Re- spondents received materials and equipment directly from outside the State of Texas, valued at $419,599.34, or about 85 percent of the mini- mum amount required by the Board to assert jurisdiction based on direct inflow, under both the Board's new standards and the jurisdic- tional plan issued in 1950. During the same period, Respondents made purchases indirectly from outside the State valued at $349,912.70, or about 35 percent of the minimum indirect inflow requirement under both the old and new standard. Although the volume of the Respondents' operations does not meet the requirements of any separate jurisdictional standard as to inflow or outflow, the Board previously would have asserted jurisdiction, under the Rutledge formula, on the basis of the total impact upon commerce of the Employer's operations under both these standards. The major- ity, however, rejects jurisdiction and refuses to apply the Rutledge formula, citing its action in the Jonesboro case in overruling the for- mula. Yet neither in that case nor in this one does the majority deign to give or explicate any reason why this formula should be abandoned. The Rutledge standard, in brief, was designed to gauge the impact on commerce of employers whose dollar volume of direct or indirect outflow or inflow did not equal the minimum amount required for assertion of jurisdiction on any single category. Under the Rutledge standard, jurisdiction was nevertheless asserted if the employer 's total business volume, arrived at by adding the percentages of the minimum requirement in each category, amounts to 100 percent and thus has a total comparable effect upon commerce. For example, where an em- ployer has inflow amounting to 50 percent of the required dollar amount and outflow amounting to 50 percent of the required dollar amount, thus totalling 100 percent, the total effect on commerce is com- parable to a 100 percent movement in a single direction and accord- ingly satisfies the requirements for asserting jurisdiction. Far from being in any sense an inferior standard by which to measure the im- pact on commerce for the assertion of jurisdiction, as the majority 608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD abandonment of it might suggest, the Rutledge standard is of the same stature and importance as any of the so-called "independent" jurisdictional standards. Though it necessarily is stated in terms of percentages of the minimum requirements of the other standards, it does not result in bringing within the scope of the Board's functions any enterprises which exert less effect on interstate commerce than do the other standards. For the 1950 standards were designed to enable the Board to measure the actual impact of an employer's operations on interstate commerce. They were stated in dollar amounts so that the measurement could readily be made with a reasonable degree of accuracy, both by the Board and by the parties affected. The Rutledge standard is a logical application of that theory to employers whose operations affect commerce because they buy and/or sell directly or indirectly in interstate commerce. Rather than being an innovation, that standard basically reflected what had always been the Board's approach to jurisdictional issues even before the 1950 plan. The Board has always given consideration both to inflow and outflow of goods in determining whether an employer's operations "affect commerce." By abandoning the Rutledge standard the majority is discriminating against those employers and their employees whose operations affect commerce to just as great an extent, as do the operations of other em- ployers and employees over whom it asserts jurisdiction. It is giving controlling weight to the direction of movements in commerce rather than to* the quantity of the movements. Moreover, this is done without setting forth any reasonable basis on which to justify the denial of the benefits of the Act to these employers and their employees. Indeed, a close examination makes apparent how illogical and arbitrary is the abandonment of the Rutledge formula. For example, if the Respondents in this case had purchased an additional $81,000 worth of materials directly from sources outside the State of Texas thus raising their direct inflow to $500,000, and had not purchased any of the materials valued at $319,000 from sources indirectly out-of-State, the majority would assert jurisdiction. 'Ap- parently they believe that such a slight rearrangement in Respondents' sources of supply, even though resulting in the purchase of a lesser amount of materials originating out-of-State, somehow magically changes the impact on commerce to a degree requiring the assertion of Board jurisdiction. This is obviously illogical and erroneous. Although the instant case on its facts involves only the combining of direct and indirect inflow of materials (there being virtually no out- of-State sales), the majority's complete rejection of the Rutledge formula of course means that there can be no combining of out-of- State purchases and out-of-State shipments or of any other inde- pendent standards as a basis for asserting jurisdiction. For example, ROGERS BROS . WHOLESALERS 609 the Board would not take jurisdiction under the new standards of an employer who ships $40,000 worth of goods out of State (80 percent, of the required outflow) and who receives $400,000 worth of goods, from out of State (80 percent of the required direct inflow). It will wholly ignore the $400,000 inflow of materials from out of State which would cease as a result of a cessation of such employer's business, al- though it would assert jurisdiction if the employer shipped only an additional $10,000 worth of goods out of State. In other words, in the majority's view, the cessation of business of such an employer in- terrupting the movement of goods in commerce amounting to $440,000 would not have a sufficient impact on commerce because the movement in commerce is in two directions-in and out-yet they consider the impact sufficient to justify assertion of jurisdiction if it involves a $50,000 movement in one direction outward. Truly the Board is now taking a wholly "one sided" view of the impact of an employer's op- erations on commerce. If it uses its outflow yardstick, it refuses to pay any attention to the inflow; if it uses its inflow yardstick, it refuses to measure the outflow too. This indeed is a novel approach to the problem of jurisdiction which I cannot reconcile either with logic or with years of Board and court decisions, nor does the majority even attempt to. As the Court of Appeals for the Fourth Circuit said in Newport News Shipbuilding and Drydock Co.,' "If the flow of com- merce is obstructed by labor disputes, it can make no difference from which direction the obstruction is applied." In summation, the Rutledge formula is merely the logical applica- tion of the mathematical fact that the whole is equal to the sum of its parts. We are directed by Congress and the Act to protect commerce from the impact of disputes which affect it. The Board obviously cannot satisfy that obligation by merely looking to the individual effect created within a single, artificially divided segment of an em- ployer's commerce and by ignoring the cumulative effect of his activi- ties upon commerce treated as a whole. The use of the Rutledge for- mula is therefore essential if the Board is to survey the entire impact of an enterprise upon commerce, and to take jurisdiction where that impact is appreciable. Moreover, the instant decision raises doubts concerning the exercise of Board jurisdiction in other fields. As I pointed out in detail in my dissenting opinion in the Breeding case, and as, indeed, I believe my colleagues will not deny, the Board has been specifically directed by Congress to exercise its jurisdiction in the building and construction industry. Because of the contractor-subcontractor relationship and common situs situations which are widespread in that industry, the • 101 F. 2d 841, 843. 338207-55-vol 110-40 610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Board in determining the impact of a dispute on commerce frequently considers, as one, the commerce activity of several employers insofar as they are affected by the dispute involved.' As the Board noted in the Jamestown case,8 Accordingly, in determining whether the Board will assert juris- diction in cases in which secondary boycotts are alleged, we must consider not only the operations of the primary employer, but also the operations of any second employers, to the extent that the lat- ter are affected by the conduct involved . . . If, taken together, the business of the primary employer and that portion of the sec- ondary employers' business which is affected by the alleged boycott meet the minimum standards, jurisdiction ought to be asserted. However, if the Board is now refusing to observe and consider all the commerce activity of a single employer and to base assertion of juris- diction upon more than one "independent" type of activity, I question whether in law, logic, or good conscience, it could consider as one the activity of several employers, adding together data under different standards for different employers. Yet to do so is essential if we are w carry out the mandate of the Act. Although the omission of the James- town formula from the July 1 and 15 press releases statement of the current standards suggests its abandonment also and at least adds to the confusion created, it is not my understanding that the Board in- tends to scuttle that doctrine. The same problem arises with respect to employers bargaining as a group. The Board has heretofore based assertion of jurisdiction over one of an association of employers linked for bargaining purposes, on the amount of commerce of the entire group of employers. Yet this practice too, if continued by the Board, is inconsistent with the rule herein that all parts of the activity of a single employer cannot be added together for the assertion of jurisdiction. Accordingly, I strongly disagree with the decision of my colleagues to overrule the Rutledge decision and, on the basis of the foregoing con- siderations, would assert jurisdiction over Respondents. MEMBER PETERSON, dissenting : I disagree with the action taken in this case by a majority of my col- leagues. The record before us shows that the optical laboratory now operated by Respondent Wholesalers, a partnership composed of four brothers, was until July 1, 1950, operated as part of Texas Optical. T See, for example, N. L. R. B. v. Denver Bldg. & Construction Trades Council, 341 U. S. 675. In that instance, the subcontractor involved had only $5,000 direct outflow and $55,000 direct inflow ; purchases and sales which, separately , are insufficient to take jurisdiction under either the 1950 plan of the Board or the newly revised- standards. 8 Truck Drivers Local Union No. 649, International Brotherhood of Teamsters , Chauf- feurs, Warehousemen and Helpers of America, AFL, 93 NLRB 386. ROGERS BROS. WHOLESALERS 611. The latter, which now operates 24 retail outlets in Texas, is a partner- ship composed of 2 of the same partners as comprise Wholesalers. About 90 percent of Respondent Wholesalers' business is received from Texas Optical, and some 80 percent of Texas Optical's prescriptions are filled by Wholesalers. Ben Rogers serves as general manager of Texas Optical and also is in charge of personnel for Wholesalers. Al- though the two companies maintain separate records, they have a com- mon administrative office, which determines broad operational policies for both. Ben Rogers signs checks for both companies; some employees are interchanged; and common employment forms are used. That there is a relationship between Respondent Wholesalers and Texas Optical is further revealed by findings of the Trial Examiner, which I must assume the majority does not find erroneous. Thus, he found, in connection with certain alleged illegal layoffs, that the drop in prescriptions, coming to the laboratory (which Respondents assert accounted for the layoffs) resulted from "arrangements worked out be- tween Texas State Optical and the Respondents." Moreover, he con- cluded that "there was no economic basis for a shortage of work for the Respondents' employees and that any such lack of work ... was intentionally caused by the Respondents and Texas State Optical Company...:' In the 1950 jurisdictional plan, the Board had a so-called "combina- tion category" under which jurisdiction was determined by combining the percentages which a company had in each of the dollar volume categories.' As I indicated in my separate opinion in the Breeding case 10 and my concurring opinion in the Jonesboro case,11 I agree to the abandonment of this standard., However, unlike my majority col- leagues, I do not believe that the jurisdictional issue is thereby resolved. Thus, as stated in the majority opinion in Jonesboro, the Board's di- rect and indirect inflow standards remain the same as they were under the 1950 jurisdictional plan. Furthermore, it appears from the facts which I have set forth in detail above that Rogers Bros. Wholesalers, the Respondent, and Texas Optical Company are closely integrated and may well be treated as a common employer for jurisdictional pur- poses. In light of the foregoing, I would grant the Charging Union's motion to reopen the record and would remand the case for further evidence as to (a) the relationship between the Respondent Wholesal- ers and Texas Optical Company and (b) the commerce data of the latter company, in order to determine whether these firms should be considered as a common employer and, if so, whether their joint com- merce data meet either the Board's direct or indirect inflow standard. 9 The Rutledge Paper Products, Inc., 91 NLRB 625. 'Q Breedsng Transfer Company, 110 NLRB 493. 11 Jonesboro Grain Drying Cooperative, 110 NLRB 481.