Lewis Brothers Bakeries, Inc.

National Labor Relations Board - Board Decisions

Nov 10, 1949

86 N.L.R.B. 1326 (N.L.R.B. 1949)

In the Matter of LEWIS BROTHERS BAKERIES, INC., A CORPORATION and
BAKERY AND CONFECTIONERY WORKERS INTERNATIONAL UNION,
LOCAL No. 199, A. F. L.
Case No. 14-CA-166.-Decided November 10, 1949
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon a second amended charge filed by Bakery and Confectionery
Workers International Union, Local No. 199, A. F. L., herein-called the
Union, the General Counsel of the National Labor Relations Board,
herein called respectively the General Counsel and the Board, by the
Regional Director of the Fourteenth Region (St. Louis, Missouri) is-
sued a complaint dated August 18, 1949, against Lewis Brothers
Bakeries, Inc., Anna, Illinois, 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 National Labor Rela-
tions Act, as amended, 61 Stat. 136, herein called the Act. Copies
of the complaint and charge were duly served upon the Respondent.
On August 25, 1949, the Respondent filed its answer to the com-
plaint, denying that its operations affect commerce within the mean-'
ing- of the Act, and further denying the commission of any of the al-
leged unfair, labor practices.
Pursuant to notice, a hearing was held on September 21, 1949, at
Jonesboro, Illinois, before John Lewis, the Trial Examiner designated
by the Chief Trial Examiner. The General Counsel, the Respondent,
and the Union were represented by counsel at the hearing. The Trial
Examiner received in evidence the complaint, answer, and other for-
mal documents in the case, and written and oral stipulations and docu-
mentary evidence concerning the effect of the Respondent's operations
upon commerce. The Respondent thereupon moved to dismiss the
complaint, on the ground that it would not effectuate the policies of
the Act for the Board to assert jurisdiction in this case. All parties
were afforded full opportunity to be heard and to introduce evidence
86 N. L. R. B., No. 149.
1326
LEWIS. BROTHERS BAKERIES, INC. 1327
bearing upon the issue of the Board's jurisdiction over the Respond-
ent's operations. The Trial Examiner received no evidence as to the
merits of the unfair labor practice charges. He heard oral argument
upon the Respondent's motion to dismiss and, relying upon the Board's
decision in an earlier representation case involving the Respondent,"
sustained the motion.
Thereafter the General Counsel filed a request for review of the
Trial Examiner's dismissal of the complaint, and a brief in support
of his request for review. The Respondent filed a brief in support of
the Trial Examiner's ruling.
The Board 2 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 Gen-,
eral Counsel's request for review, the briefs filed, and the entire record
in the case, and hereby denies the General Counsel's request that the
ruling of the Trial Examiner dismissing the complaint be reversed,
and makes the following :
FINDINGS OF FACT
THE BUSINESS OF. THE RESPONDENT
The Respondent is an Illinois corporation having its principal office
and only place of business in Anna, Illinois, where it is engaged in the
manufacture and sale, at wholesale and retail, of bakery products.
During 1948, its total purchases amounted to $303,627.10, of which
about 45 percent was directly shipped and about 5 percent indirectly
shipped from sources outside the State of Illinois. Total sales for
the same year, amounting to $526,871.31, were made wholly within
the State to grocery stores, markets, and other places of business as
well as to individual consumers at retail.
The General Counsel contends that the foregoing commerce facts
reflect a volume of business substantially greater than that reflected
in the earlier representation proceeding,' and that such increase in
volume of business constitutes more of a basis for asserting juris-
diction in this proceeding than in the earlier case. We do not agree.
As volume of business is only one of the criteria to be considered in
determining whether it will effectuate the policies of the Act to assert
" Matter of Lewis Brothers Bakeries , Inc., 81 N. L. R. B. 1230, issued March 8, 1949.
8 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three-member panel [Chairman Herzog and Mem-
bers Houston and Gray].
3 Footnote 1, supra. The Board therein declined to assert jurisdiction on a showing
that during 1947, the Respondent's purchases amounted to $105,000, of which about 35
percent was directly shipped and in excess of 15 percent indirectly shipped from out-of-
State sources ; for the same year total sales, all intrastate, exceeded $450,000.
1328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
jurisdiction,4 and as there has been no substantial change in the nature
of the Respondent's business, we find, as in the earlier case, that it
will not effectuate the policies of the Act to assert jurisdiction in this
case over this essentially local enterprise .5 Accordingly, we affirm
to the Trial Examiner's dismissal of the complaint and deny the Gen-
eral Counsel's request that his ruling be reversed.6
ORDER
IT IS HEREBY ORDERED that the complaint against Lewis Brothers
Bakeries, Inc., Anna, Illinois, be, and it hereby is, dismissed.
' See, for example , Matter of Conlon Baking Company, 81 N. L. R. B. 934, in which the
Board declined to assert jurisdiction over a bakery whose purchases exceeded $1,000,000,
'of which 70 percent originated out-of-State.
" See also Matter of The O'Rourke Baking Company , Inc., 79 N. L. R. B. 1456, in which
the Board declined to assert jurisdiction over a bakery with annual purchases of approxi-
mately $800 , 000, of which $ 160,000 was directly shipped and approximately $600,000
indirectly shipped from out-of-State.
8 We find without merit the General Counsel's contention that the character and timing
of the alleged unfair labor practices are material to the jurisdictional issue. Matter of
Central Tower Inc., 84 N. L. R. B. 357. We also reject the contention that the Board has
no discretionary authority to dismiss a complaint on policy grounds, if legal jurisdiction
does in fact exist . See Matter of Local 905 of The Retail Clerks International Association
(AFL) et at. (H. W. Smith, d/b/a A-1 Photo Service), 83 N. L. R. B. 564 ; Matter of
Waitresses and Cafeteria Women 's Local No . 305, et at . ( Haleston Drug Stores, Inc.),
86 N. L. R. B. 1166, issued October 31, 1949.