San Diego Ice and Cold Storage Co.

In the Matter Of SAN DIEGO ICE AND COLD STORAGE CO., A CORPORATION and INTERNATIONAL LONGSHOREMEN'S & WAREHOUSEMEN'S UNION Cases Nos. C-4,36 and R-499.-Decided November 8, 1939 Ice, Distilled Water, and Soft Drinks Manufacturing; Cold Storage; and Beer, Wine, and Liquor Distributing Industry-Complaint and Petition: dis- missed without prejudice for lack of evidence to sustain the jurisdiction of the Board. Mr. William R. Walsh and Mr. David Sokol, for the Board. Mr. Frank J. Macomber and Mr. William H. Macomber, of San Diego, Calif., for the respondent. Mr. A. L. Wirin, of Los Angeles, Calif., for the Longshoremen. Mr. John Murray and Mr. L. H. Dayton, of San Diego, Calif., for the Teamsters. Mr. Walter T. Nolte, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE On September 25, 1937, San Diego Local of International Long- shoremen's and Warehousemen's Union, herein called the Longshore- men, filed with the Regional Director for the Twenty-first Region (Los Angeles, California) a petition alleging that a question affect- ing commerce had arisen concerning the representation of employees of San Diego Ice and Cold Storage Company, San Diego, California, herein called the respondent, and requesting an investigation and cer- tification of representatives pursuant to Section 9 (c) of the Na- tional Labor Relations Act, 49 Stat. 449, herein called the Act. Upon an amended charge duly filed by the Longshoremen, the National Labor Relations Board, herein called the Board, by the Regional Director, issued its complaint dated November 9, 1937, against the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the Act. 17 N. L. R. B., No. 30. 422 SAN DIEGO ICE AND COLD STORAGE COMPANY 423 On November 11, 1937, the Board, acting pursuant to Section 9 (c) of the Act and Article III, Sections 3 and 10 (c) (2), and Article IT, Section 37 (b), of National Labor Relations Board Rules and Regulations-Series 1, as amended, ordered an investigation of the question concerning representation and authorized. the Regional Di- rector to conduct such investigation and to provide for an appropriate hearing upon due notice, and further ordered that the cases arising from the petition and the charge be consolidated for the purposes of hearing. Copies of the complaint and notices of joint hearing in the rep- resentation and unfair labor practice cases were duly served upon the respondent, the Longshoremen, International Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers of America, herein called the Teamsters, the Central Labor Council of Los Angeles, California, and the Los Angeles Industrial Union Council. Pursuant to notice a consolidated hearing was held at San Diego, California, on November 17, 18, 19, 20, 29, and December 13, 1937, before Thomas H. Kennedy, the Trial Examiner duly designated by the Board. The Board, the respondent, the Longshoremen, and the Teamsters were represented by counsel or other duly authorized agent and participated in the hearing. Full opportunity to be heard, to examine and- cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. On December 20, 1937, the respondent filed a "Written Argument Relative to Jurisdiction" in which it contended that the record failed to sustain the Board's jurisdiction over the respondent. Thereafter the Trial Examiner filed an Intermediate Report dated February 16, 1938, in which he found that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and '(3) and Section 2 (6) and (7) of the Act and recommended that the respondent cease and desist there- from and take certain affirmative action to remedy the effects of the unfair labor practices. The respondent and the Longshoremen there- after filed exceptions to the Intermediate Report. They also filed briefs directed to the question of the Board's jurisdiction. None of the parties requested oral argument before the Board although ad- vised of the right to make such request. On July 20, 1939, San Diego Industrial Union Council filed a request for rehearing. The request has been considered and is hereby denied. Upon the basis of the entire record in the cases, the Board makes the following: 247384-40-vol. 17-28 424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT THE BUSINESS OF THE RESPONDENT San Diego Ice and Cold Storage Company , a Delaware corpora- tion , maintains its principal office and place of business in San Diego, California. It is engaged in the manufacture and sale of ice, dis- tilled water, and soft drinks ; in the operation of a cold storage plant; and in the distribution of beer, wine , and liquor. All the supplies and equipment used by the respondent in its manu- facturing operations are procured from points within the State of California . Similarly all the beer, wine, and liquor handled by the respondent is purchased within the State . Part of the beer and liquor is manufactured outside the State, but the precise amount thereof is not disclosed by the record. During 1936 the respondent 's sales totalled $440,394.11 , of which approximately three-tenths of one per cent, amounting to $1,497.05, represented shipments outside the State. During the period from January 1 to October 15, 1937, the respondent 's sales totalled $690,- 161.58, of which approximately three-tenths of one per cent, amount- ing to $2,192 .28, represented shipments outside the State. Except for one customer to whom the respondent sells practically all of the ice which it manufactures, its sales within the State are made either to local consumers or to suppliers of local consumers. The respondent's sales of ice during 1936 amounted to 19,537 tons valued at $67,263.62, or approximately 151/2 per cent of its total sales for this period . The respondent's sales of ice during the period from January 1 to October 15, 1937, amounted to 16,168.2 tons valued at $51,436.84, or approximately 71/z per cent of the total sales for this period. Almost all sales of ice during the periods mentioned above were made to The Union Ice Company pursuant to the terms of an agreement negotiated in 1929 and still in effect at the time of the hearing. Under the terms of the agreement , The Union Ice Com- pany annually purchases from the respondent "an amount of ice equal to twenty-five (25 %) per cent of eighty-seven and one-half ( 871/2%) per cent of the City Sales" of The Union Ice Company during the previous year, and 50 per cent of all ice that The Union Ice Com- pany sells to railroad companies for the icing of cars in San Diego. Thus in 1936, pursuant to the terms of the agreement , The Union Ice Company purchased from the respondent 19,045 tons of ice valued at $65,392.92. During the period from January 1 to October 15, 1937, similar purchases amounted to 15,883.8 tons valued at $50,393.47. The respondent. sells ice to The Union Ice Company without know- ing what disposition the latter company makes or intends to make SAN DIEGO ICE AND COLD STORAGE COMPANY 425 of such ice. The Union Ice Company keeps no separate record of the disposition of the ice which it purchases from the respondent but sells it as an unidentified portion of its total sales. During the first 10 months of 1937, total ice sales made by The Union Ice Company (including ice purchased from the respondent during that period) amounted to 69,932.3 tons, divided as follows : 47,457.4 tons to local distribution, 13,642.2 to the American Fisheries Company for resale chiefly to the tuna fishing fleet in the port of San Diego, and 8,832.7 tons to the Pacific Fruit Express for use in the icing of railway cars. With respect to th'e distribution of the ice supplied by the respondent to The Union Ice Company, the only evidence in the record is to the effect that some is sold by the latter to the American Fisheries Company and to the Pacific Fruit Express. In the absence of records or explicit testimony showing the disposi- tion by The Union Ice Company of the ice supplied. by the respon- dent, there is no basis for estimating the amount of such ice that is thus supplied to the American Fisheries Company and the Pacific Fruit Express. Moreover, except for a stipulation by the parties that the operations of the tuna fishing fleet sailing from the port of San Diego are carried on, in a majority of instances, more than 12 miles from shore, the record is devoid of evidence of the ultimate consumption or movement in interstate commerce of the ice sold by The Union Ice Company to. the American. Fisheries Company and the Pacific Fruit Express. From the foregoing facts and on the basis of the record before us, we cannot find that the operations of the respondent affect commerce within the meaning of the Act. We shall therefore dismiss the com- plaint and the petition in'their entirety. The dismissal of the com- plaint and petition, being for lack of evidence to sustain the jursdic- tion of the Board, will be without prejudice. ORDER Upon the basis of the foregoing findings of fact and pursuant to Section 9 (c) and Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the petition for investigation and certification of representatives of em- ployees of San Diego Ice and Coal Storage Company, San Diego, California, filed by the San Diego Local of the International Long- shoremen's and Warehousemen's Union, and the complaint against. the said San Diego Ice and Cold Storage Company be, and the same hereby are, dismissed without prejudice.