Kwik Kafe of Idaho

830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kwik Vend, Inc. d/b/a Kwik Kafe of Idaho and General Teamsters, Chauffeurs, Warehousemen and Helpers Union Local No. 483, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America. Case 19-CA-4520 November 25, 1970 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On July 1, 1970, Trial Examiner James R. Heming- way issued his Decision in the above-entitled proceed- ing, finding that it would not effectuate the purposes of the National Labor Relations Act to assert jurisdiction over Respondent's operations. Accord- ingly, as set forth in the attached Trial Examiner's Decision, the Trial Examiner recommended that the complaint be dismissed. Thereafter General Counsel filed exceptions to the Trial Examiner's Decision with a supporting brief, and Respondent filed a brief in opposition to the General Counsel's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, briefs, and the entire record in this proceeding, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER It is hereby ordered that the complaint herein be, and it hereby is, dismissed. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JAMES R. HEMINGWAY, Trial Examiner: Upon a charge filed on September 25, 1969, by the above-named labor organization, herein called the Union, a complaint issued on January 9, 1970, alleging a violation of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et seq., herein called the Act. On January 26, 1970, the Acting Regional Director for Region 19 issued an amendment to the complaint striking the name of one alleged discriminatee therefrom. The Respondent ' See Carolina Supplies and Cement Co., 122 NLRB 88; Jackson's Party Service, 126 NLRB 875. filed an answer dated January 26, 1970, denying any violation of the Act. The date of filing of this answer does not appear in the record. In its answer the Respondent also contends that it is not engaged in commerce within the meaning of the Act. On April 22, 1970, the Respondent filed a motion to dismiss for lack of jurisdiction. However, in the grounds set forth in the motion, the Respondent indicates that the reason for its motion is not lack of jurisdiction, but rather that the Respondent does not come within the standards established by the Board on the basis of which the Board will assert jurisdiction. On the same date, the Regional Director referred the Respondent's motion to a Trial Examiner for ruling. By telegraphic notice, on April 24, 1970, the Trial Examiner deferred ruling on the motion until the opening of the hearing, at which time he was to hear oral argument. On that same date, the General Counsel mailed an opposition to the Respondent's motion to dismiss, which opposition was recieved by the Trial Examiner on April 27. The hearing was opened on May 5, 1970, at Boise, Idaho. At the opening of the hearing, the parties stipulated to additional facts not covered by the complaint specifically, and the General Counsel stated his intention to move to amend the complaint by adding allegations of commerce. Such motion to amend was later made and the motion was granted over opposition. After hearing oral argument on the Respondent's motion to dismiss, the Trial Examiner reserved ruling thereon and, although he thought that probably Respondent's motion would be granted, he permitted the parties to introduce evidence bearing on the merits of the case so as to avoid a reopening in the event that the decision was adverse to the Respondent on the jurisdictional issue. Upon the basis of the complaint, answer, motion of the Respondent, opposition by the General Counsel, and oral argument heard at the hearing, I make the following: FINDINGS OF FACT 1. THE FACTS OF COMMERCE A. The Contentions of the Parties Respondent contends that it is a retailer of goods and that, under the Board's jurisdictional standards, the Board would not here assert jurisdiction because Respondent's interstate operations do not reach the Board's minimum standard and because its gross sales do not reach the sum of $500,000 as required by the Board before it will assert jurisdiction.' The General Counsel concedes that Respon- dent is a retail enterprise and that its business does not meet the Board's jurisdictional standards for retail enterprises, but he contends that this case falls under the exception recognized by the Board in cases where a respondent's business has a substantial impact upon national defense of the United States.2 2 See Ready Mix Concrete & Materials, Inc, 122 NLRB 318. 186 NLRB No. 122 KWIK KAFE OF IDAHO 831 B. The Respondent's Business Respondent is an Idaho corporation engaged at Boise, Idaho, in retail sales and distribution of food products and related merchandise through vending machines. The complaint alleges and purchased answer admits that, during the calendar year 1969, "Respondent purchases goods valued in excess of $50,000 from local firms which, in turn, had purchased those goods from suppliers located outside the state of Idaho." This suffices to establish the Board's legal jurisdiction.3 Respondent's gross sales during 1969, as alleged in the complaint and admitted in the answer, exceeded $200,0004 of which sum more than $10,000 was derived from vending machines located at the Veterans Administration Hospital in Boise, Idaho, where Respondent was the sole operator of vending machines. At the hearing the General Counsel moved to amend the complaint by adding an allegation that during the same period of time, Respondent derived income of more than $18,000 from vending machines located at the United States Post Office located at 770 South 17th Street, Boise, Idaho. The motion was granted. The Respondent then moved to amend its answer to deny the added allegation, and that motion was likewise granted. However, the parties jointly introduced in evidence a contract dated November 1, 1967, between Respondent and Employees' Welfare Committee of the United States Post Office, Boise, Idaho, for the installation and operation of certain vending machines in the named Post Office, and the parties stipulated that the gross amount derived from such contract was approximately $18,000 a year. The General Counsel argues that, together, these amounts, $10,000 to patients and employees of a Veterans Administration hospital, and $18,000 to postal employees, satisfy the Board's national defense jurisdictional standard. At this time, the Board has set no dollar figure in making an exception to the minimum amount established in the field of retail trade for asserting discretionary jurisdiction. The only guideline for the exception is that the trade must have a substantial impact upon national defense. The Board has not defined the terms "substantial impact" or "national defense" with sufficient precision to permit predetermination of the issue with any degree of certainty. It has preferred to consider each case on an ad hoc basis. From cases heretofore decided, I infer that the words "national defense" imply not merely defense of the borders of the nation but also national war efforts wherever military action or aid is located and wherever the efforts are exerted. From the words "substantial impact" I deduce that the Board is concerned primarily with the effect of a strike which might seriously impede the manufacture or supply of war materiel or other necessary supplies or impede the movement, equipment, or maintenance of troops, at home or abroad. Conceivably, the words "national defense" would be elastic enough to cover other phases of the national defense, but, so far, examples beyond the foregoing are scarce. The General Counsel emphasizes the fact that Respon- dent is the sole supplier of vending machine services at the Veterans Administration Hospital , but the exclusiveness of this service must be viewed in relation to its comparative value. Respondent has six vending machines at the Boise Veterans Administration Hospital , five in one building and a sixth in another . The five consist of a candy machine, coffee and hot chocolate machine , cold drink machine, sandwich machine, and an ice cream machine . The sole machine in another building is a candy machine located in a recreation hall. The items dispensed by these machines are available to ambulatory patients, hospital personnel, and, presumably , visitors. Two additional sources of food exist at the hospital premises . The Veterans Canteen Service operates a cafeteria and general store , and the hospital itself operates its own kitchen for dispensing meals to patients . The Veterans Canteen Service's restaurant is available for use of ambulatory patients and guests. The vending machines of Respondent supplement these two other sources of food and drink . Other vending machine businesses exist in Boise, Idaho, but only the Respondent has machines at the Veterans Administration Hospital. The General Counsel argues that: ... the care and treatment of American service veterans in V.A. hospitals, and the delivery of mails are essential to national defense . And just as clearly, optimum operation of these services essential to the national defense depends in part upon the spiritual and physical sustenance offered by Respondent's vending machines. I am not convinced that Respondent 's vending machines contribute in any degree to the spiritual sustenance of patients and I find only a minimal contribution from those machines to the physical sustenance of patients or staff. No evidence was offered as to the proportion of mail passing through the U.S. Post Office at Boise that is destined to servicemen or national defense industries. In the absence of such a showing, I am unable to infer that the handling of the mail at that Post Office has a substantial impact upon national defense . Although the sale of sandwiches and drinks at a Veterans Administration hospital may have a more direct and discernible relation to national defense than do the operations of the U.S. Post Office in Boise, I conclude that Respondent's business acitivities have no substantial impact upon national defense . While I do not mean to say that the sale of food to a branch of the armed services could not have a substantial impact upon national defense,5 I find that Respondent's sales of foodstuffs are not only in relatively small amounts but they are not even a substantial part of the sales of food dispensed at the Veterans Administration Hospital ; so that hospital would not be materially inconvenienced by a strike of Respondent's employees. Cases may be found where sales apparently had a more direct effect upon national defense than those here involved but, because of the relatively small value of the sales in 3 Normandy Square Food Basket, Inc, 163 N LRB 369, 371 Cf Willard's income tax return showing gross sales of $293,724 03 Shop Rite Markets, Inc, 128 NLRB 710. 5 See Johnnie W Miller Sandwich Co, 95 NLRB 463, Colonial Catering 4 Respondent attached to its motion to dismiss a copy of its 1969 Company, 137 NLRB 1607 832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD those cases, the Board nevertheless declined to assert impact upon the national defense and that the Board jurisdictions The dollar amounts of sales in those cases should not assert jurisdiction in this case. were in some instances more than in the instant case. On the evidence as a whole, I conclude and find that the RECOMMENDED ORDER Respondent's activities and sales do not have a substantial It is recommended that the complaint herein be dismissed. 6 Hesperia Liquid Gas Company, 165 NLRB 756: Ben Patrick d/b/a Company, 107 NLRB 915. Wesiside Pattern Works, 150 NLRB 1730, Alpine Mill and Lumber