Sixto

National Labor Relations Board - Board Decisions

Dec 16, 1954

110 N.L.R.B. 1917 (N.L.R.B. 1954)

SIXTO 1917
riers ; we may not, under Edelen Transfer, add these figures to those
representing the Respondent's revenue from interstate shipments?
We therefore find that the Respondent's operations do not have such
an impact on interstate commerce as to justify the assertion of juris-
diction by the Board. Accordingly, we shall dismiss the complaint in
its entirety .3
[The Board dismissed the complaint.]
MEMBERS MURDOCH. and PETERSON took no part in the consideration
of the above Decision and Order.
2Edelen Transfer and Storage Company, Inc, 110 NLRB 1881. We note that even if
Riggio's revenue had been from interlining operations, the combined figures would have
amounted only to $47,785, which is considerably below'the $100,000 required in Edelen
Transfer.
8 For the reasons set forth in their dissenting opinion in Ede lea Transfer and Storage
Company, supra, Members Murdock and Peterson find that it would effectuate the policies
of the Act to assert jurisdiction herein. However, as they deem themselves bound by the
majority decision in the Edelen case, they concur in the dismissal of the complaint.
SIXTO ORTEGA D,/B/A SIXTO and UNION # 1 DE PANADEROS , REPosTERAs
RAMAS ANEXAS DE P. R ., FLT, PETITIONER . Case No. 24-RC-751.
December 16,1954
Decision and Order
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before John F. Burst, hearing offi-
cer. 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 :
In Santurce, Puerto Rico, the Employer operates under the same
roof a bakery, a pastry shop, and a soda fountain. He sells no meals
but serves ice cream sodas, sandwiches, coffee, lemonade, and other soft
drinks, and makes retail sales of ham, cheese, apples, bread, and pas-
try. Gross sales for the enterprise in 1953 were in excess of $200,000.
All sales were local. Gross purchases totaled approximately $139,000
and were all made locally, although $20,000 worth of flour, purchased
through a local agent, was directly shipped to the Employer from out-
side Puerto Rico.
The Employer contests jurisdiction on the ground that the Act,
which is applicable to the Territories, is not applicable to the Common-
wealth of Puerto Rico. We find it unnecessary to pass on the Em-
ployer's contention at this time, as we find, on other grounds, that it
will not effectuate the policies of the Act to assert jurisdiction in this
case. While it is true that the operations of this Employer are not
wholly unrelated to commerce, the relationship to commerce is no
greater here than in the case of a similar enterprise in any of the 48
110 NLItB No. 251
1918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
States. The Employer is essentially a retail selling organization, a.
type of business operation for which the Board has established spe-
cially applicable jurisdictional standards, as set forth in the Hogue
and Knott case.' We do not believe that the impact of this type of
operation is sufficient either in the States or in Puerto Rico to
warrant the assertion of jurisdiction when the particular enterprise
involved does not meet the standards therein set forth. The Employ-
er's business, tested against the Hogue and Knott standards, fails to
meet the amounts which we have determined are necessary to justify
our assertion of jurisdiction. We therefore find that it will not effectu-
ate the purposes of the Act to assert jurisdiction in this case, and shall
dismiss the petition. Moreover, in future cases involving other types
of business or operations, for which the Board has established specially
applicable standards for taking jurisdiction in the 48 States, we shall
apply the same standards for asserting jurisdiction in Puerto Rico.
[The Board dismissed the petition.]
MEMBER MURDOCK, dissenting :
I would assert jurisdiction over this Employer under the Board's
authority to exercise plenary jurisdiction over enterprises engaged in
commerce in the Territories, an authority long recognized by the
Board and courts? I find no merit in the Employer's contention that
the Act which is admittedly applicable to the Territories is not appli-
cable to the Commonwealth of Puerto Rico. The Board has pre-
viously considered and rejected just such a contention in Xavier
Zequeria, 102 NLRB 874. I believe the discussion of this question
in that case is dispositive of the issue and the Board's action in re-
serving the question in this decision is disturbing and confusing.
In addition I must dissent from the majority's action in abandoning
the Board's long established policy of exercising plenary jurisdiction
over labor relations matters in Puerto Rico. The majority's statement
that although
it is true that the operations of this Employer are not wholly
unrelated to commerce, the relationship to commerce is no greater
here than in the case of a similar enterprise in any of the 48
States.
is directly counter to the definition of commerce in Section 2 (6) and
(7) of the Act. As I pointed out in my dissenting opinion in The
Virgin Isles Hotel, Inc., 110 NLRB 558, to which I refer for a fuller
exposition of my views on the issue here involved, "commerce" is
differently defined with respect to Territories than with respect to the
States, including within the definition "trade . . . within any terri-
tory." No sound reason exists, therefore, for the application of juris-
i Hogue and Knott Supermarkets , 110 NLRB 543.
2 N L. R. R. v. Gonzalez Paden Co., 161 F. 2d 353 (C A. 1).
SIXTO 1919
dictional standards designed to measure the impact on commerce of
enterprises operating in one of the States to enterprises operating in
Puerto Rico or in other Territories over which this Board has plenary
jurisdiction. I also point out in my Virgin Isles Hotel dissent that
the cutting of the Board's plenary jurisdiction will mean an absence
of regulation or control of industrial disputes in the excised areas
in the Territories.3
Aside from the fact that the standard announced in this case is
based upon an erroneous conception of what constitutes commerce in
the Territories, it is further objectionable because it can only operate
to cause confusion as to the extent to which this Board will assert
jurisdiction in Puerto Rico and other Territories. What does the
majority mean by its statement that
in future cages involving other types of business or operations for
which the Board has established specially applicable standards
[emphasis supplied] for taking jurisdiction in the 48 States, we
shall apply the same standards for asserting jurisdiction in Puerto
Rico.
What is meant by "specially applicable"? I take it that the retail
standard is necessarily a specially applicable standard in this sense;
and also the standard applied to the hotel industry. (See The Virgin
Isles Hotel, Inc., supra.) But which of the other of the Board's
jurisdictional standards are to be considered "specially applicable"
standards? Surely not all of them, for if such were the case, the
majority would have stated it was going to apply all the standards
to operations in Puerto Rico. And is the policy announced herein
to be applied also in Alaska and Hawaii, or does the Board intend to
have different standards for different Territories? One of the pri-
mary reasons for having a jurisdictional plan is to avoid confusion
and uncertainty as to what the standards are. It is 6 months since
the majority announced a new jurisdictional plan, yet it appears that
the confusion and uncertainty as to the standards for the Territories
are only beginning.
In conclusion, when the Act itself directs this Board to exercise
jurisdiction over all trade "within" the Territories and the District
of Columbia; when the Board has proceeded on that basis for a
number of years without comment or alteration of the statute by the
legislature; and when the exercise of such plenary jurisdiction has
been continually supported by the courts, it is singularly inappro-
priate now to restrict our performance of that statutory duty.
For the foregoing reasons, I would find that the Employer is en-
gaged in commerce as defined in the Act and that it would effectuate
the policies of the Act to assert jurisdiction herein.
3 Bayomon Transit Company, Sucesora v. Puerto Rico Labor Relations Board, 70 P. R.
Sup Ct No. 3, p. 292.