Betty and Bert's Market

National Labor Relations Board - Board Decisions

Nov 25, 1949

87 N.L.R.B. 248 (N.L.R.B. 1949)

In the Matter of BERT AND BETTY MILLAGE D/B/A BETTY AND BERT'S
MARKET and WALTER E. OSBURN, AN INDIVIDUAL
0
Case No. 21-CA-290.-Decided November 25, 19¢9
DECISION
AND
ORDER
On September 26, 1949, Trial Examiner Sidney Lindner issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents' business was essentially local in character, and rec
ommending that the complaint be dismissed on the ground that it
would not effectuate the policies of the Act to assert jurisdiction in
this case, as set forth in the copy of the Intermediate Report attached
hereto. Thereafter, the General Counsel and the Respondents filed
exceptions to the Intermediate Report and supporting briefs. The.
Intervenor, Betty and Bert Employees Association, also filed ex-
ceptions.
The Board 1 has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The rul-
ings are hereby affirmed. The Board has considered the Intermediate
Report, the exceptions and briefs, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner.2
The General Counsel, the Respondents, and the Association contend,
however, that the Board does not possess discretionary authority to
decline to assert jurisdiction on the ground that it will not effectuate
the policies of the Act to do so. For the reasons set forth in the
A-1 Photo and Haleston cases,3 we find no merit in this contention.
We shall therefore dismiss the complaint herein.4
1 Pursuant to the provisions of Section 3 (b) of the Act, as amended, the Board has dele-
gated its powers in connection with this case to a three-member panel [Chairman Herzog
and Members Houston and Gray].
2 In addition to the cases cited in the Intermediate Report, see also Hubby-Reese Company,
72 NLRB 1404; Conlon Baking Company, 81 NLRB 934; Jacobs Pharmacy Co., 87 NLRB
309.
3 H. W. Smith d/b/a A-1 Photo Service, 83 NLRB 564; Haleston Drug Stores, Inc.,
86 NLRB 1166.
4In view of our disposition of this case on jurisdictional grounds, we, like the Trial
Examiner, find it unnecessary to pass on the merits of the alleged unfair labor practices.
Accordingly, we hereby deny the motions of the General Counsel, the Respondents, and the
Association, to remand the case to the Trial Examiner for a Supplemental Intermediate
Report containing his findings of fact, conclusions of law, and recommendations, with
respect to commerce and the unfair labor practices alleged in the complaint.
87 NLRB No. 42.
248 .
BETTY AND BERT'S MARKET
ORDER
249
Upon the entire record in this case , and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint against Bert and
Betty Millage d /b/a Betty and Bert's Market, San Bernardino, Cali-
fornia, be, and it hereby is, dismissed.
INTERMEDIATE REPORT
Messrs. George H. O'Brien and Ralph Nutter, for the General Counsel.
Mr. Taylor F. Peterson, of San Bernardino, Calif., for the Respondents.
Mr. William B. Irvin, of Los Angeles, Calif., for the Individual.
Mrs. Edwin Selvin, of Beverly Hills, Calif., for the Employees Association.
STATEMENT OF THE CASE
Upon a charge filed on December 7, 1948, by Walter E. Osburn, an individual,
herein called Osburn, the General Counsel of the National Labor Relations Board,'
by the Regional Director for the Twenty-first Region (Los Angeles, California),
issued his complaint dated February 10, 1949, against Bert and Betty Millage,
doing business as Betty & Bert's Market, herein called the Respondents, alleging
that the Respondents had engaged in and were engaging in unfair labor practices
within the meaning of Section 8 (a) (1) and (a) (2) and Section 2 (6) and (7)
of the National Labor Relations Act, 49 Stat. 449, as amended by the Labor
Management Relations Act,.61 Stat. 136, herein called the Act. Copies of the
charge and the complaint accompanied by notice of hearing thereon were duly
served upon the Respondents, the individual, and the Bert and Betty Millage
Employees Association, herein called the Association.
With respect to the unfair labor practices, the complaint alleged in substance
that the Respondents: (1) on or about October 18, 1948, through their agents,
employees, and relatives formed, assisted, and supported the Bert and Betty
Millage Employees Association as a labor organization to represent their em-
ployees; (2) on or about October 18, 1948, and at other times prior to and includ-
ing the date of the issuance of the complaint herein, dominated, supported, and
interfered with the operations and administration of the Bert and Betty Millage
Employees Association by causing and inducing their agents, employees, and
relatives to organize the Association by furnishing financial and other support
to their agents, employees, and relatives for expenses in organizing the Associa-
tion, and by causing and inducing their agents, employees, and relatives to
dominate and interfere'with the administration of the Association; and (3) by
such acts interfered with, restrained, and coerced their employees in the exercise
of rights guaranteed in Section 7 of the Act.
The Respondents. duly filed an answer admitting the allegations of the com-
plaint with respect to their business but denied the commission of any unfair
labor practices.
Pursuant to notice, a hearing was held on July 19, 20, and 21, 1949, at San
Bernardino, California, before the undersigned, the Trial Examiner duly desig-
nated by the acting Chief Trial Examiner. The General Counsel, the Respond-
i The General Counsel and his representatives at the hearing are herein called the General
Counsel , and the National Labor Relations Board is called the Board.
250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ents, and the individual were represented by counsel ; the Association by its
representative. All participated in the hearing. Full opportunity to be heard,
to examine and cross-examine witnesses, and to introduce evidence bearing upon
the issues was afforded all parties. At the close of the hearing, the General
Counsel moved to conform the pleadings to the proof in formal matters; the
motion was allowed without objection. Oral argument was waived ; after the
close of the hearing, the General Counsel and counsel for the Respondents filed
briefs with the undersigned.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENTS'
The Respondents, Bert and Betty Millage, are husband and wife, partners,
doing business under the name of Betty & Bert's Market, in the operation of a
retail food market, cafe, and watermelon stand, all under one roof in San
Bernardino, California.
During 1948, the Respondents, in the course and conduct of their business, pur-
chased meats, dry groceries, fruits and vegetables, dairy products, bakery prod-
ucts, beer, and wine valued at $177,385.21. All such purchases were made locally
from California suppliers and jobbers. During the first 6 months of 1949, the
Respondents bought similar products valued at $88,502.36 locally from California
suppliers and jobbers. During the 18-month period herein described, the only
purchases of merchandise from without the State of California were dye stuffs
in the amount of $139 shipped directly to the Respondents from Moline, Illinois.
The Respondents' total sales for the 18-month period were in the amount of
$314,035.80. All sales were made at their store in the city of San Bernardino
for local consumption.
The Respondents are members of Certified Grocers of California, Limited,' a
nonprofit buying cooperative whose 1;200 members operated 1,350 retail outlets
in the States of California, Arizona, Nevada, Utah, and the Territory of Hawaii.`
The cooperative's annual sales are in excess of $86,000,000, and approximately
60 percent of the items handled by it originate outside the State of California.
During 1948, the Respondents sole purchases from the cooperative were dry
groceries' in the value of $36,600.89.
Conclusions
It is apparent from the foregoing that the Respondents' operations are "essen-
tially local" in character.' The General Counsel points out however that approxi-
mately 56 percent of the Respondents' purchases made within the State of Cali-
2 The findings in this section are based upon a stipulation of the parties entered into at
the hearing.
3 Requisites for membership in the cooperative are the purchase of 10 shares of common
stock in the value of $200.
4 Less than 5 percent of the members' stores are located in States other than the State of
California. The member stores in California are concentrated for the most part in Southern
California.
5 Dry groceries include canned goods, packaged foods, and household sundries.
0 See, for example, Creamland Dairies, Inc., 80 NLRB 106, in which the Board dismissed
a representation petition involving a business purchasing about 25 percent, or $125,000 of
its raw materials from points without the State of which it was resident, and sold in excess
of a $1,000,000 valuation of finished products all within the State of New Mexico.
BETTY AND BERT'S MARKET 251
fornia consisted of goods originating outside the State. The undersigned does
not consider it necessary to decide whether this furnishes a basis as a matter of
law for finding that the Respondents' activities "affect commerce." 7 In recom-
mending the dismissal of this proceeding the undersigned is guided by the Board's
recent decisions in several cases including the Hom-Oad Food Store, Inc., case,
77 NLRB 647, holding that to assert jurisdiction over a chain of retail grocery
stores doing a business of $4,000,000 annually, some 25 percent of its $3,000,000
annual purchases having originated from without the State of Texas where all
of its 13 stores were located, would not "effectuate the statute's policies. . . ." 8
RECOMMENDATIONS
For the reasons above set forth, the undersigned recommends that the com-
plaint herein be dismissed.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board, any party may, within twenty (20) days from the date
of service of the order transferring the case to the Board, pursuant to Section
203.45 of said Rules and Regulations, file with the Board, Washington 25, D. C.,
an original and six copies of a statement in writing setting forth such exceptions
to the Intermediate Report or to any other part of the record or proceeding
(including rulings upon all motions or objections) as he relies upon, together
with the original and six copies of a brief in support thereof ; and any party may,
within the same period, file an original and six copies of a brief in support of the
Intermediate Report. Immediately upon the filing of such statement of excep-
tions and/or briefs, the party filing the same shall serve a copy thereof upon
each of the other parties. Statements of exceptions and briefs shall designate
by precise citation the portions of the record relied upon and shall be legibly
printed or mimeographed and if mimeographed shall be double spaced. Proof of
service on the other parties of all papers filed with the Board shall be promptly
made as required by Section 203.85. As further provided in said Section 203.46
should any party desire permission to argue orally before the Board, request
therefor must be made in writing to the Board within ten (10) days from the
date of service of the order transferring the case to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, recommendations, and recom-
mended order herein contained shall, as provided in Section 203.48 of said Rules
and Regulations, be adopted by the Board and become its findings, conclusions,
and order, and all objections therto shall be deemed waived for all purposes.
Signed at Washington, D. C., this 26th day of September 1949.
SIDNEY LINDNER,
Trial Examiner:
See however, San Diego Ice and Cold Storage Company , 17 NLRB 422.
8 See the following cases-also . Bangor Auto Body Shop, 82 NLRB 688; Advance Welding
Works, 81 NLRB 199; Matter of Haleston Drug Stores, Inc., 82 NLRB 1264; A-1 Photo
Service, 83 NLRB 564.