Willard's Shop Rite Markets, Inc.

710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD .Norris testified that Storey had the final decision on discharge and that he recom- mended Brannan be discharged for excessive absenteeism, and also because, according to Norris, every one of Brannan's supervisors had made unfavorable reports con- cerning him. Storey testified Norris did not report specific defects concerning Brannan's asserted work deficiencies., Bowen, the last of Brannan's supervisors, stated that Brannan did everything he was asked to do. Bowen's complaints about Brannan that he related in his testimony develop on examination into the probability that Bowen 's characterization of Brannan as an agitator is properly measured by Bowen 's attempt to prevent Brannan from conversing with zany employees out of Bowen's presence. It seems clear that Bowen was implementing a procedure to make working conditions difficult and unpleasant for Brannan and that Brannan's 2-day absence on March 26 and 27 was utilized as an ostensible lawful basis to discharge the leader of the Union 's organizational attempt. Stating the proposition another way, absent his posture as the main union organizer, I am persuaded that an employee with the experience and skill of Brannan would not have been discharged for the reason claimed by Respondent. With the exception of the interrogation of Brannan by Storey on December 9, 1958, the balance of the allegations in paragraph VIII of the complaint are not sup- ported by any evidence or evidence of such an equivocal nature that no finding of an unfair labor practice can be made with respect to such allegation excepting the interrogation of Brannan by Storey. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent described in section III, above , occurring in connec- tion with the operations of the Respondent described in section I, above, have a close, intimate, and substatnial relation to trade , traffic, and commerce among the several States , and tend to lead to labor disputes burdening and obstructing com- merce and the free flow thereof. Upon the basis of the foregoing findings of fact , and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Anderson Air Activities, Inc., is engaged in commerce within the meaning of the Act. 2. International Association of Machinists, AFL-CIO, is a labor organization within the meaning of the Act. 3. The discharge of Gerald Brannan was caused because of his membership in and activities on behalf of the Union and because he engaged in concerted activities with other employees for the purpose of collective bargaining and other mutual aid and protection and in order to discourage membership in said Union. By said activity, Respondent has violated Section 8 (a) (1) and (3) of the Act. 4. By interrogating Gerald Brannan with respect to his union activities and intimating that his advancement could be obtained by withdrawing his support from the Union, Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of the Act. 6. Except as herein indicated , the allegations of the complaint charging unfair labor practices have not been established. [Recommendations omitted from publication.] Willard's Shop Rite Markets, Inc. and Retail Grocery and Food Clerks Local No. 876, Retail Clerks International Association, AFL-CIO. Case No. 7-CA-2288. August 16, 1960 DECISION AND ORDER On April 18, 1960, Trial Examiner Henry S. Salim issued his Inter- mediate Report in the above-entitled proceeding, recommending dis- missal of the complaint for jurisdictional reasons, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the 128 NLRB No. 81. WILLARD'S SHOP RITE MARKETS, INC. 711 General Counsel filed exceptions to the Intermediate Report together with a supporting brief and a motion to remand this case to the Trial Examiner. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Mem- bers Rodgers and Jenkins]. The Board has considered the rulings of the Trial Examiner made at the hearing in connection with the jurisdictional issue and finds that no prejudicial error was committed. These rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and brief, and the entire record in the case. We find merit in the exceptions, and, accordingly, do not adopt the Trial Examiner's conclusions or recommendations, but only his findings of fact which are not inconsistent with our Decision and Order herein. The Trial Examiner's recommended dismissal of the complaint was based on his conclusion that the General Counsel had failed to prove that legal or statutory jurisdiction had been established. It is ap- parent that in reaching this conclusion the Trial Examiner failed to consider the fact that the parties stipulated on the record that the Respondent, a Michigan corporation, in the operation of its business for the fiscal year ending April 30, 1959, had made purchases of ap- proximately $25,000 from points directly outside the State of Michi- gan. We therefore find, contrary to the Trial Examiner, that legal or statutory jurisdiction was established by the General Counsel and that the Respondent is engaged in commerce within the meaning of the Act. Accordingly, we shall grant the General Counsel's motion to remand the case to the Trial Examiner for the preparation of a Supplemental Intermediate Report concerning the merits of the complaint. [The Board remanded this case to the Trial Examiner for the pur- pose of preparing and issuing a Supplemental Intermediate Report.] INTERMEDIATE REPORT STATEMENT OF THE CASE Upon charges filed on February 24, 1959, by Retail Grocery and Food Clerks Local No. 876, Retail Clerks International Association, AFL-CIO, the General Counsel of the National Labor Relations Board , by the Regional Director for the Seventh Region, issued a complaint dated May 28, 1959, against Willard's Shop Rite Markets, Inc., herein called the Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8 ( a) (1) and (3) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge, complaint, and notice of hearing were duly served on the Respondent and the Charging Party. With respect to the unfair labor practices, the complaint alleges, in substance, that Respondent violated Section 8(a) (3) of the Act by terminating the employment of two of its employees because of their union membership and activities and that Respondent violated Section 8 (a) (1) by interrogating and threatening its employees and granting them economic benefits in an effort to dissuade them from adhering to the Union. 712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent's answer, filed on May 4, 1959, denies the commission of any unfair labor practices and also denies certain jurisdictional averments in the complaint which are discussed below. Pursuant to notice, a hearing was held in Lansing, Michigan, on November 2, 1959, before Henry S. Sahm, the duly designated Trial Examiner. All parties were represented by counsel, and were afforded full opportunity to participate in the hearing, to introduce relevant evidence bearing on the issues, to argue the issues orally upon the record, and to file briefs and proposed findings of fact and conclu- sions of law. A brief was filed by Respondent. ISSUE Whether jurisdiction will be asserted over a labor dispute where the Respondent's gross annual grocery receipts meets the Board's minimum volume of business mone- tary standard but the Respondent denies (which is uncontradicted) that it purchased outside the State a "substantial" amount of goods, and the General Counsel fails to introduce evidence that Respondent retailer conducted business across State lines or that his operations affect commerce and that he is engaged in commerce within the meaning of Section 2(6) and (7) of the Act.' Upon the entire record in this case, the Trial Examiner makes the following: FINDINGS OF FACT 1. The Respondent is a Michigan Corporation, with its principal place of business located at 1910 West Saginaw Street, Lansing, Michigan, where it is engaged in the retail sale of meats and groceries. 2. Respondent, in the conduct of its retail grocery store, sold during the calendar year 1958 in excess of $1 million worth of meats and groceries. 3. The General Counsel alleges in his complaint the following: During the same calendar year of 1958, which is representative of all times material hereto, Respondent, in the course and conduct of its business opera- tions, purchased and caused to be transported to its store in Michigan from points located outside the State of Michigan, a substantial amount of meats, meat products and groceries. 4. The Respondent in its answer admits that it sold in excess of $1 million worth of meats and groceries during the calendar year 1958. 5. Respondent, however, denies in its answer the allegation in the complaint that it "purchased and caused to be transported to its store in Michigan from points located outside the State of'Michigan, a substantial amount of meats, meat products and groceries." 6 The charge states that Respondent employs 17 workers. Upon the basis of the foregoing findings of fact, and upon the entire record in this proceeding, the Trial Examiner makes the following: CONCLUSIONS OF LAW The Board has held that in addition to showing that a retail store's annual business amounts to at least $500,000 a year, as required to meet the Board's monetary standard for asserting jurisdiction, it must also be shown that the retailer's operations affect interstate commerce in order for the retail employer to come within the Board's jurisdiction.2 i Section 2(6) : The term "commerce" means trade, traffic, commerce, transportation, or communi- cation among the several States, or between the District of Columbia or any Territory of the United States and any State or other Territory, or between any foreign country and any State, Territoy, or the District of Columbia, or within the District of Columbia or any Territory, or between points in the same State but through any other State or any Territory or the District of Columbia or any foreign country. Section 2(7) : The term "affecting commerce" means in commerce, or burdening or obstructing commerce or the free flow of commerce, or having led or tending to lead to a labor dispute burdening or obstructing commerce or the free flow of commerce. 2 James, D. Jackson d/b/a Jackson's Party Service, 126 NLRB 875, which was decided subsequent to the hearing in the proceeding at bar. WILLARD'S SHOP RITE MARKETS, INC. 713 The Board stated in the Jackson Party case, supra, that: 2. The Board's current standard for exercising jurisdiction over a retail concern which falls within its statutory jurisdiction is a minimum gross annual volume of business of $500,000. Carolina Supplies and Cement Co., 122 NLRB 88. In such instances, however, some proof must be made of legal or statutory jurisdiction, that is, that the employer involved is engaged in commerce 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 met. Catalina Island Sightseeing Lines, 124 NLRB 908; Westside Market Owners Association, et al., 126 NLRB 167. It is not enough to show that the Employer's gross annual volume of business satisfies the Board's standards for asserting jurisdiction over retail establishments. The Board's authority over commerce is very broad. It even extends to local activities [which] "in the interlacings of business across state lines affect such commerce." Polish National Alliance etc. v. N.L.R.B., 322 U.S. 643, 647. Its jurisdiction, perhaps, is limited only to the extent that de minimis non curat lex. N.L.R.B. v. Fainblatt, et al., 306 U.S. 601. However, as to what is precluded by the de minimis maxim must be determined on a case-by-case basis subject, of course, to the Board's relevant gross volume test being satisfied and compliance with the pro- visions of ,the National Labor Relations Act.3 The "Findings and Policies" of the National Labor Relations Act provides, inter alia: "It is hereby declared to be the policy of the United States to eliminate the causes of certain substantial obstructions to the free flow of commerce and to mitigate and eliminate these obstructions.. . 49 Stat. 429, 29 U.S.C., § 151. In 1950, when the Board adopted for the first time monetary jurisdictional standards, it stated: 4 . it would better effectuate the purpose of the Act and promote the prompt handling of major cases, not to exercise its jurisdiction to the fullest extent pos- sible under the authority delegated to it by Congress, but to limit that exercise to enterprises whose operations have, or at which labor disputes would have a pronounced impact upon the flow of interstate commerce. In 1954, when the Board's 1950 jurisdictional standards were changed, the Board stated: In making these modifications, we have given due consideration to all of the criteria spelled out by the Board in 1950, including (1) the problem of bringing the caseload of the Board down to manageable size, (2) the desirability of reducing an extraordinarily large caseload in order that we may give adequate attention to more important cases, (3) the relative importance to the national economy of essentially local enterprises as against those having a truly sub- stantial impact on our economy, and (4) overall budgetary policies and limita- tions. If one of the inevitable consequences of our action is to leave a some- what larger area for local regulation of disputes, we do not share our colleagues' apparent view that this is a sinister development. We do say, however, that a desire to establish broader State jurisdiction is in no wise a factor in our decision. We are concerned here solely with the problem of defining the limits of our jurisdiction pursuant to the discretionary power vested in us by the Congress .5 On October 2, 1958 (Press Release R-576), the Board announced the adoption of revised jurisdictional standards. The reasons for its action are detailed in Siemons Mailing Service, 122 NLRB 81. At page 84 of that decision, the Board stated: Under the new standards, the Board will continue to apply the concept that it is the impact on commerce of the totality of an employer's operations that should determine whether or not the Board will assert jurisdiction over a particular employer. 3 See N.L R B. v. Suburban Lumber Company, 121 F. 2d 829 (CA 3), and Yakima Cascade Fuel Co. at al, 126 NLRB 1316, where the Board declined jurisdiction over employers' combined retail and nonretail business because the nonretail aspect was de manimus. 4 Hollow Tree Lumber Company, 91 NLRB 635, 637. g Breeding Transfer Company, 110 NLRB 493, 497. 714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Board in Southwest Hotels, Inc.,6 a hotel chain case where the Board's gross annual business standard of $500,000 for this industry was met, held that "legal" jurisdiction must also be shown, that is, that the Respondent is "in commerce" within the meaning of the Act which means some business must be done across State lines. The Board stated: Although Southwest concedes that our jurisdictional standard is met in the case of the Marion and Lafayette hotels, it nevertheless contends that the Board is precluded from asserting jurisdiction because of a lack of proof on these records that the necessary legal jurisdiction, that which is predicated on a finding that the Employer's activities "affect commerce," can be established. The distinction and difference between the Board's self-imposed, discretionary jurisdictional standards and the jurisdictional requirements imposed by the Act and the Constitution is fully recognized by the Board. Many of our jurisdic- tional standards already embody the conclusion that the Board's legal jurisdic- tion has been proved, since they are based on a substantial movement of goods and services across State lines. However, those standards which are stated exclusively in terms of gross volume of business (among which is the hotel standard) serve only to establish the level below which the Board believes that it would not effectuate the policies of the Act to assert jurisdiction. It is there- fore always to be understood that before we apply our gross volume jurisdic- tional standards to assert jurisdiction, the record must conclusively demonstrate the existence of legal jurisdiction. Thus, in this case, as in all hotel cases, we must be satisfied on the basis of the record before us that the operations of the Employer "affect commerce." It is unlikely that an enterprise meeting our volume of business standard would not affect commerce, since that phrase indicates the congressional intent to exercise the fullest possible Federal jurisdiction, but the possibility never- theless must be reckoned with. We must therefore base our assertion of juris- diction in hotel cases on probative evidence rather than on any common under- standing that the manufacture and distribution of the hundreds of items con- sumed and utilized in the operation of a commercial hotel necessarily affects interstate commerce. Although, the General Counsel alleges in the complaint that the Respondent "purchased and caused to be transported to its store in Michigan, directly from points located outside the State of Michigan, a substantial amount of meats, meat products and groceries," this allegation has been denied by Respondent in its answer. In such a posture, some proof must be made of legal or statutory jurisdiction, that is, that the employer involved is engaged in commerce or that his operations affect commerce within the meaning of Section 2(6) and 2(7) of the National Labor Rela- tions Act, as amended, in addition to a showing that the relevant gross volume test has been satisfied. In other words, application of standards stated exclusively in terms of gross volume of business depends on an independent showing of legal or statutory jurisdiction showing that the employer's operations "affect commerce" and therefore, legal or statutory jurisdiction exists. Since such proof of legal or statutory jurisdiction, supra, was not introduced by the General Counsel, it is recommended, based upon the above findings of fact and conclusions of law, that the complaint herein against the Respondent, Willard's Shop Rite Markets, Inc., be dismissed. 6126 NLRB 1151. Building Service Employees International Union Local 6, AFL- CIO [Ranke Building] and Clarence Hein. Case No. 19-CB- 706. August 18, 1960 DECISION AND ORDER Upon charges duly filed by Clarence Hein, an individual, the Gen- eral Counsel of the National Labor Relations Board, by the Regional Director for the Nineteenth Region, issued a complaint dated April 128 NLRB No. 80.