Childs Co.

National Labor Relations Board - Board Decisions

Feb 15, 1950

88 N.L.R.B. 720 (N.L.R.B. 1950)

In the Matter of CHILDS COMPANY and RUSSELL R. POTTER and CHAIN
SERVICE RESTAURANT EMPLOYEES UNION, LOCAL 42, AFFILIATED WITH
HOTEL AND RESTAURANT EMPLOYEES AND BARTENDERS INTERNATIONAL
UNION, A. F. OF L., PARTY TO THE CONTRACT
In the Matter of CHAIN SERVICE RESTAURANT EMPLOYEES UNION,
LOCAL 42, AFFILIATED WITH HOTEL AND RESTAURANT EMPLOYEES AND
BARTENDERS INTERNATIONAL UNION, A. F. OF L., and RUSSELL R.
POTTER and CHILDS COMPANY, PARTY TO THE CONTRACT
Cases Nos. 2-CA-420 and 2-CB-130.-Decided February 15, 1950
DECISION
AND
ORDER REMANDING CASE
On November 18, 1949, Trial Examiner Sidney Lindner orally
granted the Union's motion to dismiss the complaint herein on the
ground "that it would not effectuate the policies of this Act to assert
jurisdiction in this case.". The Trial Examiner denied the Company's
motion to dismiss the complaint as a matter of law, because he did not
And "that the business of Childs Company is wholly unrelated to com-
merce." 1 Thereafter, the General Counsel filed a request for review
of the Trial Examiner's order and filed a brief in support of his re-
quest. The Respondent Company and the Respondent Union have
filed statements in support of the Trial Examiner's order.2 The Com-
pany's statement renewed its request that the Board dismiss the com-
plaint on the ground that the operations of the Company do not affect
commerce as defined in Section 2 (6) and (7) of the Act.
i The Trial Examiner 's rulings were made after he heard the General Counsel's evidence
on the issue of jurisdiction , but before he heard any evidence on the other issues raised by
the complaint.
1 At the hearing, the Respondents also moved to dismiss on the ground that the original
charge was untimely filed. The Trial Examiner denied the motion, and the Respondents
excepted . However, they do not press this exception in their statements to the Board.
As the amended charge, on which the complaint herein is based, alleges the occurrence of
violations of the Act less than 6 months before the filing of the amended charge , the amended
charge was timely filed and the complaint based thereon was properly issued. Accordingly,
we affirm the Trial Examiner 's denial of the Respondents ' motion to dismiss on that ground.
The Union has requested oral argument. This request is denied as, in our opinion, the
issues are sufficiently developed in the record, the General Counsel ' s brief, and the Re-
spondents ' statements to the Board.
88 NLRB No. 139.
720
CHILDS COMPANY 721
The Board has considered the General Counsel's request for review
and the supporting brief, the statements of the Respondents, and the
entire record in the case, and hereby makes the following findings:
1. Childs Company is a corporation whose stock is held publicly
and traded on the New York Stock Exchange. It operates 29 res-
taurants in New York State, 2 in New Jersey, 1 in Wisconsin, 1 in
Michigan, 3 in Pennsylvania, and 2 in the District of Columbia.
Through various wholly owned subsidiaries, it operates 3 additional
restaurants in Massachusetts, 1 each in Maryland, Rhode Island, Vir-
ginia, Florida, and New Jersey, and 6 in Canada. Of the 29 New
York State restaurants, 28 are located in New York City. The charges
in this proceeding arose out of a closed-shop contract between the two
Respondents covering employees in the New York City restaurants.
During June 1949, which all parties agreed was a typical month,
the Company purchased goods worth approximately $400,000 on be-
half of its New York State outlets. About 21/2 percent of this amount,
or goods worth about $10,000, were purchased directly from out-of-
State dealers. The Company was unable to determine what propor-
tion of the goods it purchased from New York dealers had originated
outside the State. The figures set forth above therefore do not ac-
curately reflect the entire influence of the Company's New York
transactions upon interstate commerce. The Company makes no out-
of-State sales.
The Company is a highly integrated chain operation, whose policies
on all matters of management are determined in New York and relayed
to the field, where they are executed by local managers who have very
little control over the method of execution. The New York office of the
Company purchases shortening, china, glass, silverware, paper
towels, coffee, smoked meats, and canned goods on behalf of its out-
lets and those of its subsidiaries. Other purchases are made locally
in accordance with a general purchase plan worked out in New York.
Contracts with local suppliers are approved in New York, and a local
manager cannot change his source of supply without prior approval
from New York. Local suppliers are paid by checks drawn in New
York on banks in the locality where the outlet is located .3 Basic
menus and prices for all outlets are prepared biweekly by the New
York office. Local managers may vary these menus only by adding
certain local specialties.
All employees of local outlets are paid in cash from local cash funds;
managers are paid by check from New York. Transfers of employees
8 This does not apply to liquor purchases made in States where such purchases can be
made only for cash. .
722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
occur frequently. During the first 9 months of 1949, there were 193
interstate transfers of employees.
All personnel policies are determined in New York. Contracts for
outlets whose employees are represented by unions are negotiated by
the industrial relations manager and personnel manager of the New
York office. Wages, hours, vacations, social security benefits, and other
working conditions for employees of unorganized outlets are deter-
mined in New York in accordance with standards prevailing in the
locality where the outlet is located.
The Board has consistently held that an essentially local enterprise
loses its local character when it is part of an interstate chain opera-
tion, such as that involved herein. Thus, the Board has asserted juris-
diction over such essentially local enterprises as moving picture the-
aters,4 automatic vending machines,5 exterminating services,° retail
department stores which make no direct out-of-State purchases,? gas
appliance repair services,8 and tree trimming and landscaping serv-
ices,9 where the enterprise involved was an outlet of a multi-State
chain. In each of these cases, the volume of interstate business trans-
acted by the local enterprise was much smaller than that involved
herein.
There is no reason in the instant case to deviate from the policy set
forth in the above-cited cases. Accordingly, we find that the Com-
pany is engaged in commerce within the meaning of Section'2 (6) and
(7) of the Act, and further, that it will effectuate the policies of the
Act for the Board to assert jurisdiction in the instant case. Therefore,
we shall reverse the Trial Examiner's order dismissing the complaint,
and remand the case to him with instructions to hear the same on its
merits and to prepare and issue an Intermediate Report thereon.
ORDER
IT IS HEREBY ORDERED that the order dismissing the complaint made
herein by the Trial Examiner be, and it hereby is, reversed; and
IT IS FURTHER ORDERED that the above-entitled case be, and it hereby
is, remanded to the Trial Examiner for the purpose of hearing the
same on its merits and of preparing and issuing an Intermediate Re-
port thereon, setting forth his findings of fact, conclusions of law, and
recommendations with respect to the unfair labor practices alleged
in the complaint herein.
4 Balaban & Katz ( Princess Theatre ), 87 NLRB 1071.
5 Mills Automatic Merchandising Corp., 86 NLRB 1096.
° Orkin Termite Co., Inc., 79 NLRB 935.
v Block and Kuhl Department Store , 83 NLRB 418.
° Gas Consumers Association , 85 NLRB 1497.
The Davey Tree Expert Company, Inc., 81 NLRB 1161.