C. P. Evans Food Stores, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1954

108 N.L.R.B. 1651 (N.L.R.B. 1954)

C. P. EVANS FOOD STORES , INC. 1651
Upon the basis of the foregoing findings of fact and upon the
entire record in this case, the Board makes the following:
CONCLUSIONS OF LAW
1. Hadley Manufacturing Corporation is engaged in com-
merce within the meaning of Section 2 (6) and (7) of the Act.
2. Amalgamated Clothing Workers of America, CIO, is a
labor organization within the meaning of Section 2 (5) of the
Act.
3. Hadley Manufacturing Corporation has not engaged in
unfair labor practices affecting commerce within the meaning
of Section 8 (a)(1) and Section 8 (a) (3) and Section 2 (6) and
(7) of the Act.
[The Board dismissed the complaint.]
C. P. EVANS FOOD STORES, INC. and AMALGAMATED MEAT
CUTTERS AND BUTCHER WORKMEN OF NORTH AMERICA,
AFL, LOCAL 408 andEVANS FOOD STORES EMPLOYEES
ASSOCIATION, Party to the Contract. Case No. 39-CA-267.
June 30, 1954
DECISION AND ORDER
On March 19, 1954, Trial Examiner Max Goldman issued his
Intermediate Report in the above-entitled proceeding, finding
that it would not effectuate the policies of the Act for the
Board to assert jurisdiction in this case, and recommending
that the complaint be dismissed in its entirety, as set forth
in the copy of the Intermediate Report attached hereto. There-
after, the General Counsel filed exceptions to the Intermediate
Report and a supporting brief.
The Board has reviewed the rulings of the Trial Exam-
iner made at the hearing and finds that no prejudicial error
was committed. The rulings are hereby affirmed. The Board
has considered the Intermediate Report, the exceptions and
brief, and the record in the case, and hereby adopts the find-
ings, conclusions, and recommendations of the Trial Exam-
iner.
[The Board dismissed the complaint.]
Member Murdock, dissenting:
I disagree with the majority's refusal to assert jurisdiction
in this case, because such refusal is both contrary to unreversed
precedents and to logic. Because of a seeming inability to
distinguish between operations in interstate commerce and
operations which affect interstate commerce the majority has
108 NLRB No. 237.
1652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
compounded the error it first initiated in Brooks Wood
Products.'
The facts as set forth in the Intermediate Report , disclose
that Respondent received $ 578,000 worth of merchandise
directly from points outside the State of Texas. Seventy-eight
thousand dollars worth of goods were purchased by Respondent
directly from out-of-State manufacturers, and were shipped
from the manufacturers directly to Respondent's stores. With
respect to the remaining $500,000 worth of goods, Respondent
placed orders with brokers located in Texas , who then arranged
for the shipment of the goods directly to Respondent ' s stores
from the out-of-State manufacturers. The brokers received
no remuneration from Respondent for these services, and at
no time obtained title to the goods they ordered. They did,
however, have the option of placing the orders with either
intrastate or interstate manufacturers . Respondent received
bills for the goods it thus obtained, directly from the out-of-
State manufacturers in most cases. Occasionally the brokers
forwarded the bills to Respondent.
The majority's adoption of the Trial Examiner's conclusion
. . that the Respondent's business operations are not of such
a character as the Board requires, as a matter of policy, for
the exercise of its jurisdiction" is grounded on no policy
heretofore set forth by the Board. Because of the majority's
reliance on Brooks Wood Products it is apparent that the
majority believes that the $78,000 worth of products purchased
by Respondent directly from out-of-State manufacturers,
represents direct inflow , but that the $ 500,000 worth of
products purchased by Respondent from out-of-State manu-
facturers , through brokers, represents indirect inflow, even
though the goods purchased are shipped directly to Respondent
from points outside the State of Texas. But that conclusion
misapplies Brooks Wood Products, ignores Supreme Court
decisions which define "interstate commerce " so as to include
the transactions between Respondent and the brokers, and also
ignores the fact that the impact of Respondent's operations on
interstate commerce clearly places it within the limits of the
Federal Dairy,2 standard.
Even assuming the correctness of the majority ' s approach
that in determining the effect of an employer's operations on
interstate commerce, the Board should follow the title of the
products involved to ascertain whether their movement con-
stitutes a direct or indirect movement in commerce, that
approach requires a finding that the goods received by Re-
spondent from out-of-State manufacturers, constitute direct
inflow, whether or not the goods were ordered directly from
the out-of-State manufacturers or from brokers, who subse-
quently elected to place the order with out-of-State manu-
1107 NLRB 237.
2 Federal Dairy Co., Inc., 91 NLRB 638.
C. P. EVANS FOOD STORES, INC. 1653
facturers. For the goods came directly from the out-of-State
manufacturer to Respondent, title passed from the out-of-
State manufacturer to Respondent, and the out-of-State manu-
facturer billed Respondent for the purchase price of the
goods. 8
But apart from any considerations of whether Brooks Wood
Products is appropriately cited for the result reached by the
majority, that result is clearly erroneous because all the
transactions involved in the moving of the goods from the out-
of-State manufacturers to Respondent, both the transactions
between the Respondent and the brokers, and the out-of-State
manufacturers constitute transactions in "interstate com-
merce." 4 As a direct result of these interstate transactions,
goods moved from without the State of Texas into Respondent's
stores in Texas, such movement constituting by and of itself
interstate commerce. Such an inflow of goods under such con-
ditions constitutes a flow of goods directly in the stream of
commerce and is direct inflow as that term is used in Board
decisions. That the Board has from the inception of the
current jurisdictional plan considered purchases shipped
directly to the purchaser from out-of-State sources to be
direct inflow is not open to doubt.5 Furthermore, four Members
of the present Board have themselves recognized that shipments
of goods and materials from out-of-State sources constitute
direct inflow. 6
The majority's decision graphically illustrates the lack of
realism of the majority's "twice removed from interstate
commerce" standard. I have suggested numerous times in the
past that the jurisdictional standards of the Board are designed
to enable the Board to readily measure the impact of an em-
ployer's operations on interstate commerce.' When viewed in
this light, the proper decision in this case is obvious. It is
readily seen that a strike of Respondent's employees and a
SSee the majority's decision in Brooks Wood Products, supra wherein the major-
ity says "They clearly would be covered by the Board's past jurisdictional policy with
respect to firms doing business with companies engaged in interstate commerce if they
sold to either Budd or Kelsey-Hayes...."
4 Walling v. Jacksonville Paper Co., 128 F. 9.d 395 (C. A. 5), in which the court held that
where a respondent "takes an order" from a customer and fills it outside the State and
the goods are shipped interstate "with the definite intention that those goods be carried at
once to that customer and they are so carried, the whole movement is interstate...."
affirmed 317 U. S. 395. Federal Trade Commission v. Pacific States Paper Trade Asso-
ciation, 273 U. S. 52, in which the Court held that contracts between a wholesaler and a re-
tailer in the same State for the sale of paper, where the wholesaler could elect to have the paper
sent from mills in another State to or for the retailer, constitute interstate commerce. See
also Weeks v. U. S., 245 U. S. 618; N L. R. B. v. Fainblatt, 306 U. S. 601.
5Snohomish County Building Material Association, 92 NLRB 39; Yale Filing Supply Co.,
91 NLRB 1490, L R. p. 1494; Beavers Packing Company, 97 NLRB 233.
6Jay-K Independent Lumber Corp., 108 NLRB 1323.
t See my dissenting opinions in Brooks Wood Products supra; John McCormack Co.,
107 NLRB 606; Local 1083, United Automobile, Aircraft and Agricultural Implement Workers
of America. CIO, 107 NLRB 470; Casey Welding Works, 107 NLRB 929.
1654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cessation of its business will interfere with the movement of
goods into Respondent' s stores. Such a strike will interfere
with the movement of those goods whose movement in inter-
state commerce is initiated by orders placed with brokers in
precisely the same manner and to the same extent as it will
interfere with the movement of those goods whose movement
in interstate commerce is initiated by orders placed directly
with the out-of-State manufacturers. Any distinction between
the goods ordered directly from out-of-State manufacturers,
and the goods ordered tr,roughbrokers, where the orders result
in goods moving from the out-of-State manufacturers directly
to Respondent' s stores is a distinction without a difference,
both in law and in reason. Such a distinction overemphasizes
a paper transaction and wholly 'overlooks the impact on com-
merce. It is the latter that this Board should be concerned
with.
For the foregoing reasons I find that of the Respondent's
total purchases of goods and merchandise valued at about
$6,000,000, $578,000 constitute direct inflow in interstate
commerce. Accordingly, under existing standards, jurisdiction
is properly asserted over Respondent 8 and the case should be
remanded to the Trial Examiner for the purpose of making
recommended findings of fact and conclusions of law on the
merits.
8 Federal Dairy Co., Inc., supra Giant Markets, Inc., 107 NLRB 10.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon a charge filed by Amalgamated Meat Cutters and Butcher Workmen of North America,
AFL, Local 408, herein called the Charging Union, the General Counsel by the Regional
Director for the Sixteenth Region (Fort Worth, Texas), of the National Labor Relations
Board, herein called the Board, issued his complaint dated April 14, 1953, against C. P. Evans
Food Stores, Inc., herein called the Respondent, alleging that the Respondent had engaged
in and was engaging in unfair labor practices affecting commerce within the meaning of
Section 8 (a) (1), (2), and (3) and Section 2 (6) and (7) of the Labor Management Relations
Act, 1947, 61 Stat. 136, herein called the Act. Copies of the complaint and the charge together
with notice of hearing were duly served upon the Respondent, the Charging Union, and Evans
Food Stores Employees Association, herein called the Association.
With respect to unfair labor practices, the complaint as amended at the hearing alleges
in substance that the Respondent (1) engaged in certain acts of interference, restraint, and
coercion, (2) donunated, supported, and interfered with the administration of the Associa-
tion , and (3) discriminatorily discharged four named persons. The Respondent's answer
denies the commission of unfair labor practices.
Pursuant to notice, a hearing was held on certain days between July 14 and August 6, 1953,
at Galveston, Texas, before the undersigned, the Trial Examiner designated by the Chief
Trial Examiner. The General Counsel, the Respondent, and the Association were represented
by counsel and the Charging Union was represented by its International representative Full
opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence
C. P. EVANS FOOD STORES, INC. 1655
bearing on the issues , was afforded the parties . The parties waived oral argument and briefs
were received from the General Counsel and the Respondent.
Upon the entire record in the case 1 the undersigned makes the following:
FINDINGS OF FACT
THE BUSINESS OF THE RESPONDENT
The Respondent , a Texas corporation , is engaged in the retail sale of meats, drugs, vege-
tables, groceries , and related products in a chain of 11 stores located in the State of Texas
only. These stores are located in the cities of Galveston , Alvin, Texas City, and Beaumont.
The Respondent employs about 350 people and maintains headquarters for its operations at
Galveston . During the 12-month period preceding the hearing , the Respondent purchased
goods and merchandise valued at about $ 6,000,000 , of which about $ 1,338, 000, represents the
value of national brand goods . The Respondent purchased national brand goods such as Car-
nation Milk , Lipton Tea, Procter & Gamble, Del Monte, Kraft, Clorax , General Mills , Swift,
Crustene , National Biscuit Company, and Quaker Oats products , principally through about
20 food brokers domiciled in the State of Texas. These brokers are not in the employ of
and receive no emolument or compensation from the Respondent , but conduct independent
businesses of food brokerage . Each broker has a price list of a number of national brand
concerns and other concerns , and most of them call on the Respondent at regular intervals
to take orders. The Respondent places orders with the brokers on the Respondent's own
purchase order blanks and the brokers then make arrangements for the shipment of the par-
ticular national brand products involved . At the time of purchase of these national brand
products through these brokers , the Respondent does not know nor does it exercise any con-
trol in determining what portion , if any, will be shipped from points outside or from points
inside the State of Texas. In most cases the Respondent receives its bills for such goods from
the national brand concern involved, which, in many instances , maintains offices within the
State of Texas from which bills are mailed ; occasionally bills are received through the broker
involved.
Of the national brand merchandise valued at $1,338 ,000, during the period involved , $ 500,000
represents the value of goods purchased through these food brokers domiciled in the State
of Texas which were shipped to the Respondent from points outside the State of Texas,
and $ 760, 000 represents the value of goods purchased through these food brokers domiciled
in the State of Texas which were shipped to the Respondent from points within the State
of Texas. Of the merchandise valued at $ 760,000 which was shipped to the Respondent from
points within the State of Texas , the value of about $ 660,000 , represents an estimate of the
national brand goods manufactured or processed within the State and the value of about
$100,000, represents an estimate of the national brand goods manufactured or processed
outside the State which had been stored in warehouses in the State for future distribution
and were so warehoused prior to any order from the Respondent and were then upon order
shipped to the Respondent from these warehouses . The remainder of the national brand
goods valued at $78,000, was purchased by the Respondent directly from manufacturers
located outside the State of Texas and was shipped to the Respondent from points outside the
State.
Upon these facts it is found that the Respondent ' s business operations are not of such a
character as the Board requires , as a matter of policy, for the exercise of its jurisdiction. 2
It will therefore be recommended that the complaint be dismissed.
[Recommendations omitted from publication.]
'The record includes a stipulation of the parties stating in some detail the business acti-
vities of the Respondent. This stipulation which was filed with the undersigned on March
15, 1954, forms the principal basis for the findings hereinafter made.
ZSee Brooks Wood Products, 107 NLRB 237; John McCormack Co., 107 NLRB 606. Dorn's
House of Miracles, Inc., 91 NLRB 632; and Giant Markets Inc., 107 NLRB 10.