San Jose City Lines, Inc.

National Labor Relations Board - Board Decisions

Sep 28, 1953

106 N.L.R.B. 1167 (N.L.R.B. 1953)

SAN JOSE CITY LINES, INC. 1 167
SAN JOSE CITY LINES, INC. and INTERNATIONAL ASSO-
CIATION OF MACHINISTS, DISTRICT LODGE NO. 93,
AFL, Petitioner. Case No. 20-RC-1937. September 28,
1953
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Nathan R.
Berke, hearing officer. The hearing officer's rulings made at
the hearing are free from prejudicial error and are hereby
affirmed.
The Employer has moved to dismiss this proceeding, inter
alia, on jurisdictional grounds.
The Employer operates a public bus transportation system in
San Jose, California, and the immediate surrounding area.
However, the record fails to establish to our satisfaction that
these operations, as such, affect commerce within the meaning
of the Act. Furthermore, although there is some evidence that
the Employer is a subsidiary of an enterprise incorporated and
operating in another State, we do not believe that the record
establishes that the Employer is part of a multistate transit
system. Upon the entire record herein, we find that the Em-
ployer is not engaged in commerce, or in activities affecting
commerce, within the meaning of the Act. We shall, therefore,
dismiss the petition.
[The Board dismissed the petition.]
Member Murdock took no part in the consideration of the
above Decision and Order.
106 NLRB No. 201.
L. WIEMANN COMPANY and LOCAL 1284, RETAIL CLERKS
INTERNATIONAL ASSOCIATION, AFL, Petitioner. Case No.
13-RC-3415. September 28, 1953
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Robert G.
Mayberry, hearing officer. The hearing officer's rulings made
at the hearing are free from prejudicial error and are hereby
affirmed.
Upon the entire record in this case, the Board finds:
1. The Employer moved to dismiss the petition on the grounds
that the Board is without jurisdiction in this matter, and that
even if it be decided that the Board does have jurisdiction it
should not exercise its jurisdiction because the State of Wis-
consin has adequate and satisfactory machinery to handle the
problems raised.
106 NLRB No. 190.
1 168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Employer operates 12 retail stores in the greater
Milwaukee area, and additional stores in Madison , Green Bay,
Fond du Lac, La Crosse , Watertown , and Racine . The above
cities are all in the State of Wisconsin , at.distances varying
from 25 miles to 150 miles from Milwaukee . During the 1-year
period preceding the hearing the Employer purchased goods
valued at approximately $ 1,798,325 , 60 percent of which was
purchased from points outside the State of Wisconsin . During
the same period its total sales amounted to approximately
$2,830 ,419 all of which were made within the State of Wiscon-
sin.
In support of its first contention the Employer relies on the
case of Walling v . L. Weimann Co ., 138 F . 2d 602 (C. A. 7,
1943), certiorari denied 321 U. S. 785 , which held the Fair
Labor Standard Act of 1938 to be inapplicable to certain
warehouse and office employees of the Employer . The Employer
contends that under the rule of stare decisis the decision in
that case precludes the Board from asserting jurisdiction over
the Employer . The application of that Act however is limited
to employees "engaged in commerce or in production of goods
for commerce ."1 ( Emphasis supplied .) The Board ' s jurisdic-
tion is not so limited , but extends toEmployers and employees
whose operations " affect commerce ." 2 (Emphasis supplied.)
Contrary to the Employer's contention , we find that its opera-
tions affect commerce within the meaning of the Act. The
Employer ' s contention that the Board should cede jurisdiction
to the Wisconsin Employment Relations Board is equally without
merit. Even if the State Board had at some time asserted
jurisdiction over the Employer such action would not preclude
the exercise of the Board's jurisdiction under the amended Act,
where, as here , no agreement ceding jurisdiction has been or
could be consummated .' As the record indicates that the Em-
ployer makes annual purchases in excess of $500,000 from
points outside the State of Wisconsin , we find that it will
effectuate the purposes of the Act to assert jurisdiction in
this matter.4
2. The Employer contends that the record is barren of any
proof as to the right of the Petitioner to represent its em-
ployees. This contention is apparently directed at the Peti-
tioner ' s status as a labor organization , and at the question of
whether it has made a sufficient showing of interest to support
the petition . The record need not reflect facts relating to the
administrative investigation of the showing of interest. In any
129 USC S 206, 207.
2 Earl McMillian Company, 81 NLRB 639, The Plumbing Contractor's Association of
Baltimore Maryland, Inc., et al , 93 NLRB 1081, Rural Cooperative Power Association,
95 NLRB 235, Speicher (Bolton & Hay), 100 NLRB 361
3Krambo Food Stores, 98 NLRB 1320, see also Lacrosse Telephone Corp. v Wisconsin
Employment Relations Board, 336 U S. 18; Sears Roebuck & Co., 91 NLRB 1411.
4Federal Dairy Company, Inc., 91 NLRB 638. Chairman Farmer and Member Rodgers
concur in this finding but do not thereby adopt the Board's past jurisdictional plan as a
permanent policy.
L. WIEMANN COMPANY 1169
event the investigation shows that the Petitioner made a suffi-
cient showing of interest.' Undisputed testimony on the record
indicates that the Petitioner is an organization in which em-
ployees participate and which exists for the purpose of dealing
with employers concerning grievances, labor disputes, wages,
rates of pay, hours of employment, or conditions of work, and
is therefore a labor organization within the meaning of the Act.
Under these circumstances the question of whether the Peti-
tioner has the right to represent any of the Employer's
employees depends on the desires of the employees, which
can best be determined by means of a secret election as
directed herein. We find that the labor organization involved,
claims to represent certain employees of the Employer.
3. A question affecting commerce exists concerning the
representation of employees of the Employer within the meaning
of Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The Petitioner seeks to represent all sales personnel,
stock clerks, fountain clerks, and warehouse employees em-
ployed in the 12 greater Milwaukee area stores of the Em-
ployer. The Employer took no position with respect to the
appropriate unit. Each of Employer' s stores is run by a store
manager on a profit - sharing basis . He places orders for
merchandise with a buyer in the general office, who has
authority to grant, reject, or modify the requisition order.
The goods purchased are either sent directly to the store or
to the central warehouse in case of large quantity orders. Each
store manager has complete authority over hiring and firing
and is under the direct supervision of the superintendent of
stores who in turn reports to the treasurer and assistant
secretary. The central office sets the general overall policy
on wages , hours, vacations , and holidays but the store managers
have discretionary authority to disregard the general policy.
In actual practice the rates of pay and the benefits are approxi-
mately the same in all stores. Each store keeps its own per-
sonnel records, but the central office maintains a file of social-
security, unemployment, and payroll records for all stores.
Individual store managers can arrange transfers from store
to store without consulting the central office. There are com-
paratively few transfers from store to store within the Mil-
waukee area and none outside the Milwaukee area. The individual
store managers may hire extra and seasonal employees as
needed. The Employer was unable to estimate the number of
such employees employed.
The factors set forth above indicate that the central office
maintains a general overall supervision of all the stores and
that the individual store manager possess wide discretionary
authority to modify the general policy to fit the needs of the
particular store. On these facts and in the absence of any past
J. L Case Company, Bettendorf Workers. 105 NLRB 638.
11 70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargaining history we conclude that either a single store or
multistore unit is appropriate. As the unit sought by the Peti-
tioner includes employees of all the stores within a single
distinct geographical area and in the absence of a bargaining
history on a more inclusive basis, we find that a unit composed
of employees of the Employer's 12 stores in the greater Mil-
waukee area' is appropriate.?
The Petitioner would exclude seasonal and extra workers.
The record does not indicate the number of hours worked by
these employees. As the Board's unit findings are based upon
functionally related occupational categories, we shall include
seasonal and extra employees in the appropriate unit irre-
spective of such factors as tenure of employment or number
of hours worked per week.' We are unable to determine from
the record whether any or all such employees should be found
eligible to vote. We shall therefore permit them to vote subject
to challenge, their ballots not to be counted unless determinative
of the final outcome of the election.
Accordingly, we find that all sales personnel, stock clerks,
fountain clerks, and warehouse employees employed at the
Employer's 12 greater Milwaukee area stores including part-
time, seasonal, and extra employees, but excluding store
managers, assistant managers, truckdrivers, watchmen and
guards, and supervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining within
the meaning of Section 9 (b) of the Act.
[Text of Direction of Election omitted from publication.]
Member Murdock took no part in the consideration of the
above Decision and Direction of Election.
6 This reference includes the West Allis store.
7 V. S Elmore 5 ,' 10 and $1.00 Stores, incorporated, 99 NLRB 1505, overruling Grand
Union Company, 81 NLRB 1016; American Stores Company, 82 NLRB 882; The great Atlantic
& Pacific Tea Company, 99 NLRB 1500; Safeway Stores, 88 NLRB 1335; cf Pappas Company
Inc., 80 NLRB 1272; Kroger Company, 88 NLRB 194.
6 The Great Atlantic and Pacific Tea Company, 99 NLRB 1500; Franklin Simon & Co.,
96 NLRB 671.