Wilson Automotive Repair, Inc.

412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Wilson Automotive Repair , Inc. and International Association of Machinists and Aerospace Workers, AFL-CIO. Case 23-CA-3108 October 28, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS JENKINS AND ZAGORIA On March 19, 1969, Trial Examiner Laurence A. Knapp issued his Decision in the above-entitled proceeding, finding that the Respondent's operations do not satisfy the National Labor Relations Board's applicable discretionary standards for the assertion of jurisdiction, and recommending that the complaint be dismissed, as set forth in the attached Trial Examiner's Decision Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the 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 and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, and orders that the complaint herein be, and it hereby is, dismissed. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE LAURENCE A. KNAPP, Trial Examiner I heard this case at Houston, Texas, on November 25-27, 1968, following prehearing procedures in compliance with the National Labor Relations Act, as amended (herein called the Act).' Following the hearing, counsel for the General Counsel and for Respondent submitted briefs which I have considered. Upon the record in the case I make the following findings of fact and conclusions of law The underlying charge was served on Respondent by registered mail on August 16, 1968, the complaint issued on October 28, 1968, and Respondent filed its answer to the complaint on November 7, 1968 Amendments to the complaint and answer were allowed at the hearing FINDINGS OF FACT I. JURISDICTIONAL FINDINGS Respondent Wilson Automotive Repair, Inc., is a Texas corporation engaged at two locations in Houston, Texas, in the sale and servicing of automotive transmissions. It is a licensee of Aamco Transmissions, Inc , a corporation chartered and headquartered in Pennsylvania Respondent operates primarily as a retail enterprise, that is, the bulk of its business is performed for individual automobile owners, but some of its income is derived from nonretail sales and services In the case of such a combination enterprise, the Board will assert jurisdiction if either its retail or nonretail jurisdiction standard is met, except that it will not seek to apply the nonretail standards if the amount of nonretail business is de minimts Respondent contends that the Board's retail standard is not met and that its volume of nonretail business is de minimts, and that, therefore, the case should be dismissed Respondent's contentions are supported by the evidence In its fiscal year ending August 31, 1968, the period utilized by the parties for the purposes of jurisdictional facts, Respondent's gross volume of business was $453,900 00, less than the $500,000 volume prescribed by the Board as the minimum for assertion of jurisdiction over Respondent as a retail enterprise As to its nonretail operations, the record contains a list of the amounts Respondent billed to named nonindividuals (mainly commercial firms in Houston) The total of such billings is $7,354.81, but of this total Respondent offered evidence on the basis of which I find that items totaling $2,360 98 represented instances in which, while the charges were billed to or in the name of some commercial firm or other type of enterprise, the true customers were individual automobile owners 2 Since in my view these instances should be considered retail business, Respondent's total volume of nonretail business was $4,993.83. Because this amount is but slightly in excess of l percent of Respondent's total business, it falls within the de minimis category of cases in which the Board will not seek to apply its nonretail standards to combination retail and nonretail enterprises. Yakima Cascade Fuel Co , 126 NLRB 1316, 1317 ' And under the Yakima decision the result would be the same were all of Respondent's billings in the names of nonindividuals considered for that reason alone to be nonretail business, since the $7,354 81 would still represent less than 2 percent of Respondent's total business and, in addition, is inherently a relatively insignificant amount of business.' 'Falling in this category are the billings to Houston Lead Co , Mobile Oil Co (for holders of Mobile Oil Co credit cards), Stainless Products Co , Starr Steel Supply, Highland Insurance Co , Denison Copier Co , Houston Paper Co , Heights State Bank, and Weingarten's 'Compare Cemetery Service Corporation, 149 NLRB 604, 605-606, and cases there cited at fn 5, p 606 It further appears that even if the Board's nonretail jurisdiction standards were applicable, they would not be met on the facts of this case These standards require an annual interstate outflow or inflow of at least $50,000 There is no contention that any such outflow exists As to inflow, Respondent in the year in question received directly from non-Texas sources parts and equipment having a value of $29,896 15 ($28,109 76 from Aamco Transmissions, Inc , and $1,786 39 from a firm identified in the record as Parco ) Respondent also purchased and received from sources in Texas (identified in the record as Allied Distributing Company, Al Parker Buick Company, Bill McDavid Oldsmobile Company, and Tenneco) some quantity of goods and materials which those suppliers, in turn, received directly from non-Texas sources On the record I have the exact amount of this "indirect inflow" cannot be determined But of the total of $5,682 17 179 NLRB No. 29 WILSON AUTOMOTIVE REPAIR, INC. I Respondent is meaning of the Act requirements of the the Board. 2 Accordingly, dismissed CONCLUSIONS OF LAW engaged in commerce within the but its operations do not meet the applicable jurisdiction standards of the complaint herein should be worth of materials Respondent obtained from Allied Distributing Company, 75 percent consisted of items rebuilt in Texas Deducting the value of these locally rebuilt items from the $10,287 02 worth of all items which Respondent obtains from these parts ' sources leaves a maximum of $6,025 41 to be added to the $29,896 15 previously described Finally, Respondent paid to two local advertising agencies about $47,500 in the year in question The General Counsel seems to assume that this entire amount should be considered "direct inflow" because it included the value of advertising copy, film, etc supplied by Respondent 's franchiser, Aamco 413 Upon the foregoing findings and conclusions and upon the entire record in the case it is recommended that the Board issue the following ORDER The complaint herein is hereby dismissed Transmissions, Inc , from without Texas But Respondent established that what Respondent paid out covered the commissions due to the local advertising agencies as well as the charges of the local advertising media (apparently largely local television and radio stations ) and counsel for the General Counsel made no attempt to establish what portion of the $47,500 represents the value of the interstate inflow of advertising services provided by Aamco upon which he relies Hence , with the burden of proof on the General Counsel, the entire $47,500 must be disregarded What is left is an interstate direct and indirect inflow totalling about $36,000 00, less than the $50,000 minimum required by the Board' s nonretail standards