MacFarlane's Candies

National Labor Relations Board - Board Decisions

Oct 25, 1950

91 N.L.R.B. 1264 (N.L.R.B. 1950)

In the Matter Of MACFARLANE'S CANDIES and RETAIL CLERKS UNION,
LOCAL 197, OF SAN JOAQUIN COUNTY, AFFILIATED WITH RETAIL CLERKS
INTERNATIONAL ASSOCIATION, AFL
Case No. 20-CA-311.-Decided October 25, 1950
DECISION AND ORDER
Upon an amended charge filed by Retail Clerks Union, Local 197,
of San Joaquin County , affiliated with Retail Clerks International
Association , AFL, 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
Twentieth Region ( San Francisco , California ), issued a complaint
dated June 22, 1950 , against MacFarlane 's Candies , Oakland, Cali-
fornia, herein called the Respondent , alleging that the Respondent
had engaged in and was engaging in unfair labor practices 1 affecting
commerce within the meaning of Section 8 (a) (1), (3 ), and (5), and
Section 2 ( 6) and ( 7) of the National Labor Relations Act, as
amended, 61 Stat. 136, herein called the Act. Copies of the complaint
and charge were duly served upon the Respondent.
On July 31 , 1950, the Respondent filed its answer , denying the
commission of any of the alleged unfair labor practices . On August
14,1950, the Respondent filed its motion to dismiss the complaint upon
the grounds that its operations do not affect commerce within the
meaning of the Act.
Pursuant to notice , a hearing was held on August 15, 1950, at San
Francisco , California , before Thomas S. Wilson , the Trial Examiner
designated by the Chief Trial Examiner. The General Counsel, the
Respondent , and the Union were represented by counsel at the hear-
ing. The Trial Examiner received in evidence the complaint, an-
swer, motion to dismiss , and other formal documents in the case, oral
and written stipulations and documentary evidence concerning the
effect of the Respondent ' s operations upon commerce . All parties
were afforded full opportunity to be heard and to introduce evi-
dence bearing upon the issue of the Board's jurisdiction over the
1 The unfair labor practices are alleged to have occurred at the Employer ' s Stockton,
California, store.
91 NLRB No. 194.
1264
MACFARLANE'S CANDIES 1265
Respondent'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 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 opposi-
tion to the General Counsel's request for review. 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 General 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 set aside, and makes the
following :
FINDINGS OF FACT
The Business of the Employer
The Employer, a California corporation, is engaged in the mane
facture and sale of candy and salted nuts. It maintains its principal
office and manufacturing plant in Oakland, California, and a branch
office and manufacturing plant in Los Angeles, California. In con-
nection with its operations, the Employer owns and operates 31 retail
candy stores throughout the State of California. During the year
1949 the Employer's purchases of raw materials, and supplies, from
direct and indirect sources outside the State of California, were ap-
proximately $393,000. During the same period, gross sales of the
Employer were approximately $2,500,000, of which $3,200 was made
to distributors in the State of Arizona, and an additional $4,000 was
made to out-of-State purchasers on individual mail requests.
Inasmuch as neither the Employer's annual out-of-State purchases
nor its annual out-of-State sales, either direct or indirect, nor any
combination thereof, meet the minimum standards recently enunciated
by the Board,3 we find that it would not effectuate the policies of the
Act to assert jurisdiction herein.4 Nor is a different conclusion war.-
Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three-member panel
[Chairman Herzog and Members Reynolds and Murdock]. -
' See Federal Dairy Company, Inc., 91 NLRB No. 107 ; Stanislaus Implement and Hard-
ware Co., Ltd., 91 NLRB No. 116; Hollow Tree Lumber Company, 91 NLRB No. 113;
The Rutledge Paper Products, Inc., 91 NLRB No. 115.
4 We find without merit the General Counsel's contention that the Board does not have
discretion in the exercise of its jurisdiction over an employer once a complaiht has issued.
See H. W. Smith, d/b/a A-1 Photo Service, 83 NLRB 546; Arthur D. Thompson, d/b/a
Cream Top Dairy, 83 NLRB 738; Lewis Brothers Bakeries, Inc., 86 NLRB 1326.
1266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ranted by the fact that the Employer has engaged in multiemployer
bargaining on a distinct area basis where, as here, no other employer
is involved, and the multiemployer group, even assuming that it is
engaged in commerce,' is not a party to the proceeding, and has not
bargained on a multiemployer basis for the store at which the unfair
labor practices are alleged to have occurred.6 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.
ORDER
IT IS IIEREBY ORDERED that the complaint 'against, MacFarlane's
Candies, Stockton, California, be, and it hereby is, dismissed.
The record does not establish that the other members of the multiemployer group are
engaged in commerce to an extent that would warrant the Board 's assertion of jurisdiction
over the group as a whole.
6 Cf. Carpenter and Skaer, Inc., 90 NLRB 417.