Westside Market Owners Association

WESTSIDE MARKET OWNERS ASSOCIATION 167 3 The Union was on September 30, 1958, and at all times thereafter has been, and now is, the exclusive representative of all employees in the aforesaid unit 4 By refusing to bargain with the Union on and after October 1, 1958, and by its unilateral action in granting economic benefits to its employees after said date, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a) (5) and (1) of the Act 5 By interfering with, restraining, and coercing its employees. in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a),(l) of the Act 6 The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act A [Recommendations omitted from publication 7 Westside Market Owners Association ; Sam Wong, Jim Wong, Roy Wong and Ben Sum, Individually and as Co-Partners d/b/a California Market; G. R Bailey and Lee R. Baiza, In- dividually and as Co-Partners d/b/a Coalinga Market; F. A. Mottle, V. J. Motte, B Motte and J. Motte, Individually and as Co-Partners d/b/a B M Food Market; William H. Blalock and Mary H. Blalock, Individually and as Co-Partners d/b/a Corner Market , and State Market of Coalinga, Inc. and Re- tail Clerks Union, Local 1288, Retail Clerks International Association, AFL-CIO and Central Valley Market Employees Association, Party to the Contract. Case No A0--S Jainru- ary 15, 1960 ADVISORY OPINION A petition has been filed by Retail Clerks International Association, AFL-CIO, Local 1288, herein called the Union, praying for an ad- visory opinion by the Board as to whether it would assert jurisdiction over the operations of State Market of Coalinga, California Market, Corner Market, B M Food Market, and Coalinga Market, herein collectively called Respondents Said petition in relevant part alleges that 1 There is now pending before the Superior Court of the State of California a suit numbered 105,598 in which State Market of Coalinga (herein called State Market) and California Market are plaintiffs and the Union and others are defendants 2 Said action is the second suit brought by the same plaintiffs against the same defendants in a California State court arismg out of the same labor dispute The first suit, brought in the Fresno County Superior Court, was dismissed by the court "on the ground that exclusive jurisdiction was vested in the National Labor Relations Board " 3 The National Labor Relations Board , assumed jurisdiction of two prior unfair labor practice charges arising out of the instant dispute, but they are no longer pending before the Board as a result 126 NLRB No 29 168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of a settlement agreement disposing of said charges. Those cases are numbered 20-CA-1647 and 20-CC-172. 4. On August 13, 1959, the Union filed a charge with the Board's 20th Regional Office against Respondents herein, and "this charge is now pending before the General Counsel on submission from the Regional Director." 5. Respondents "admit that they are members of the Westside Market Owners Association, a multi-employer association, through which the said [Respondents] guide their labor relations policies, and thereby [the Union] contends that the commerce figures appli- cable are the total figures of the association." 6. In the first State court action Respondents submitted the fol- lowing commerce data : Gross sales Afaant Establishment in 1958 Edward Young --------- State Market of Coalinga____ $622,103.95 Sam Wong_____________ California Market__________ 642, 652.90 William H. Blalock----- Corner Market_____________ 326, 346.88 F. A. Motte_____________ B M Food Market__________ 392,372. 54 G. R. Bailey ------------ Coalinga Market___________ 258, 002.91 A response dated December 14, 1959, was mailed to the Board's 20th Regional Office by Ted R. Frame, as attorney for Respondents. It has been transmitted to the Board by said Regional Office. Said response in substance alleges that : 7. The California court denied the Union's motion and demurrers to dismiss the complaint based on lack of jurisdiction, and has issued a temporary restraining order and a preliminary injunction. 8. Cases numbered 20-CA-1647 and 20-CC-172 are moot. 9. If the August 13, 1959, charge refers to Case No. 20-CA-1692, "it is not proper" because it has not yet been disposed of by the General Counsel. 10. The Union has not availed itself of or exhausted its procedural rights under California law to attack the jurisdiction of the State court; and in any event, the Board's assumption of jurisdiction does not, under California Supreme Court decisions, deprive California courts of jurisdiction. "The question is whether or not there is a conflict." Thereafter, by letter dated December 24, 1959, said Ted R. Frame sent a letter to the Board "enclosing for your attention a copy of a complaint which has been issued by the 20th Region, together with my answer thereto." The complaint enclosed in said letter was a consolidated complaint in Cases Nos. 20-CA-1647 and 20-CA-1692. 11. Said complaint alleged, among other things, that "II(A) [Westside Market Owners Association], an unincorporated associa- tion ... located at ... Coalinga, California, is an employer asso- ciation which has its members ... California Market, Coalinga WESTSIDE MARKET OWNERS ASSOCIATION 169 Market, B M Food Market, Corner Market, and State Market, which operate retail grocery stores and meat markets at Coalinga, Cali- fornia: Among its functions [Westside Market Owners Association] bargains collectively on behalf of said employer members with labor organizations. During the year 1958, the gross volume of business of said employer members was by value in excess of $500,000. During the same period, said employer members, in the course and conduct of their operations purchased and received groceries valued in excess of $100,000 from United Grocers, Ltd., and other suppliers located within the State of California, of which, groceries valued in excess of $50,000 was received by United Grocers, Ltd., and said other suppliers, in interstate commerce directly from States other than the State of California." 12. The answer to said complaint is signed by Ted R. Frame as counsel for Westside Market Owners Association, California Market, Coalinga Market, B M Food Market, Corner Market, and State Market. Said answer in pertinent part "admit[s] the allegations of paragraph II (A) of the complaint except that respondents have no knowledge of whether groceries valued in excess of $50,000.00 `was received by United Grocers, Ltd., and said other suppliers, in inter- state commerce directly from States other than the State of Califor- nia,' and upon such grounds deny said allegation. Respondents deny that they were or are engaged in commerce as is alleged in paragraph II (B) of the complaint." On the basis of the above, the Board is of the opinion that : 1. Respondents are engaged in the business of operating retail grocery stores and meat markets. 2. Respondents are members of Westside Market Owners Associa- tion, an employer association which bargains collectively on behalf of its employer members with labor organizations. 3. The Board's current standard for exercising jurisdiction over a retail enterprise which falls within its statutory jurisdiction is "a gross volume of business of at least $500,000 per annum." Carolina Supplies and Cement Co., 122 NLRB 88. In such instances "some proof must be made of legal jurisdiction," that is, that the employer involved is engaged in commerce or that his operations affect com- merce within the meaning of Section 2(6) and (7) of the National Labor Relations Act, as amended, in addition to a showing that the relevant gross volume test has been satisfied. Catalina Island Sight- seeing Lines, 124 NLRB 813. Although evidence has been received that the Respondents' operations are subject to the Board's legal or statutory jurisdiction, it has been denied by Respondents. 4. Respondents are members of a multiemployer association known as Westside Market Owners Association. The Board permits a group of employers to join together for the purpose of conducting collective- bargaining negotiations; and the employers constitute a single em- 170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployer for jurisdictional purposes. Siemons Mailing Service, 122 NLRB 81. "In these circumstances the relevant criterion in deter- mining the Board's jurisdiction is . . . the combined operations of all the Employers" in the multiemployer association. Belleville Employ- ing Printers, 122 NLRB 1019. Accordingly, the parties are advised, pursuant to Section 102.103 of the Board's Rules and Regulations, Series 8, as follows : 1. Although the facts as to the Board's legal jurisdiction are con- troverted, there have been submitted sufficient facts to enable the Board to advise the parties with respect to whether it would assert jurisdiction. 2. The Board would assert jurisdiction over labor disputes involv- ing those Respondents who are in commerce or whose operations affect commerce and whose annual gross volume of business is $500,- 000 or more. 3. The Board would assert jurisdiction over labor disputes involv- ing a multiemployer association or individual members thereof, if the total annual volume of gross business of all the members amounted to $500,000 or more and legal jurisdiction existed over the association of one or more members thereof. Middletown Lumber Company, Petitioner and Local 1477, United Brotherhood of Carpenters and Joiners of America, AFL- CIO.' Case No. 9-RM-223. January 15, 1960 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Theodore K. High, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Bean and Fanning]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent certain em- ployees of the Employer.2 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2(6) and (7) of the Act. 'Herein called Local 1477 2 At the hearing, Middletown Lumber Company Independent Union and Ohio Valley District Council ; United Brotherhood of Carpenters and Joiners of America , AFL-CIO, 126 NLRB No. 28.