Spakle's Speical Delivery

National Labor Relations Board - Board Decisions

Jan 28, 1980

247 N.L.R.B. 623 (N.L.R.B. 1980)

SPARKIE'S SPECIAL DELIVERY AND MESSENGER SERVICE
Sparkle's Special Delivery and Messenger Service,
Inc. and Retail Delivery Drivers, Driver Salesmen
and Helpers, Local 278, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America and James Silvio Aime. Cases
20-CA-14191, 20-CA-14327, and 20-CA-14233
January 28, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
On July 16, 1979, Administrative Law Judge
Jerrold H. Shapiro issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, and Respondent
filed limited cross-exceptions and a supporting brief,
and a brief in support of the Administrative Law
Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs
and has decide to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
In his Decision, the Administrative Law Judge
dismissed the consolidated complaint because he
found that the General Counsel had failed to establish
that the Board has jurisdiction over Respondent. The
General Counsel excepts to this conclusion. The
General Counsel claims, inter alia, that he failed to
introduce certain evidence on the issue of jurisdiction
because he was misled at the hearing by statements
made by the Administrative Law Judge that he
believed there was jurisdiction and that the parties
should not brief the question. We find no merit to this
exception for the following reasons.
First, as found by the Administrative Law Judge,
the General Counsel made his decision as to which
evidence to put in the record after a lengthy off-the-
record examination of Respondent's books. This
decision was made prior to any statements by the
Administrative Law Judge. The evidence was intro-
duced as a stipulation, and the General Counsel
indicated that he was satisfied that by this stipulation
he had demonstrated jurisdiction. Later, when Re-
spondent introduced rebuttal evidence, the General
Counsel stipulated to it, and made no effort to refute
it. As noted above, the Administrative Law Judge did
say that he believed that the Board had jurisdiction
and he directed the parties not to brief the issue. These
247 NLRB No. 84
statements, however, were not legal findings; they
were expressions of opinion on the issue of jurisdic-
tion. Accordingly, the General Counsel acted at his
own peril in failing to make a complete record. The
Decision, not the hearing transcript, constitutes the
Administrative Law Judge's findings, and it was clear
throughout the proceeding that Respondent was
contesting jurisdiction. We therefore conclude that
comments by the Administrative Law Judge at the
hearing concerning the issue of jurisdiction did not
prejudice the General Counsel. Accordingly, we adopt
the Administrative Law Judge's finding that jurisdic-
tion was not established here.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is,
dismissed in its entirety.
DECISION
STATEMENT OF THE CASE
JERROLD H. SHAPIRO, Administrative Law Judge: Upon
a charge filed by Retail Delivery Drivers, Drivers Salesmen
and Helpers, Local 278, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, herein called the Union, in Case 20-CA-14191 on
November 7, 1978, and a charge filed by James Aime in
Case 20-CA-14233 on November 28, 1978, the General
Counsel of the National Labor Relations Board, herein
called the Board, on December 20, 1978, issued a consolidat-
ed complaint against Sparkie's Special Delivery and Messen-
ger Service, Inc., herein called Respondent, alleging that
Respondent engaged in unfair labor practices within the
meaning of Section 8(aX)(1), (3), and (5) of the National
Labor Relations Act, as amended, herein called the Act.
Respondent filed an answer denying the commission of the
alleged unfair labor practices.
Upon a charge filed by the Union on January 11, 1979, in
Case 20-CA-14327, the Board's General Counsel, on
February 28, 1979, issued a complaint alleging that Respon-
dent engaged in unfair labor practices within the meaning of
Section 8(a)(1) and (3) of the Act. Respondent filed an
answer denying the commission of the alleged unfair labor
practices.
On February 28, 1979, the Board's Regional Director for
Region 20 issued an order consolidating the three aforesaid
unfair labor practice cases. A hearing in this consolidated
proceeding commenced on May 10, 1979, and continued for
3 days.
623
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record and after considering the briefs,' I
am of the opinion that the complaints must be dismissed
because the record fails to establish that Respondent meets
the Board's applicable jurisdictional standards. The jurisdic-
tional evidence and my reasons for dismissing this proceed-
ing for a lack of jurisdiction follow.
Sparkie's Special Delivery and Messenger Service, Inc.,
herein called Sparkie's, delivers general commodities and
messages for business enterprises located in San Francisco,
California, and the immediate vicinity. Prior to September 1,
1978, Sparkie's was owned and operated by a corporation
controlled by Louis Gill. On September 1, 1978, Respondent
purchased and commenced to operate Sparkie's. When
Respondent took over the ownership and operation of
Sparkie's it retained all of Sparkie's employees and operated
the business in essentially the same manner as before the
change in ownership. In its answer to the complaint and at
the hearing, Respondent conceded that as a matter of law
Respondent was a successor-employer.
The complaints herein, on the question of jurisdiction,
initially only alleged that during the calendar year 1978 the
business enterprise involved in this case, Sparkie's, met the
Board's indirect outflow discretionary jurisdictional stan-
dard inasmuch as Sparkie's "rendered delivery and messen-
ger services valued in excess of $50,000 to firms, each of
which has [during the calendar year 1978] met the Board's
standards for the assertion of jurisdiction on a direct basis."
But prior to the hearing the General Counsel informed
Respondent, by letter, that he intended to amend the
complaints so as to include an additional basis for the
assertion of jurisdiction; namely, that Respondent's project-
ed income for its first 12 months of operation, September 1,
1978, to August 31, 1979, would meet the Board's indirect
outflow jurisdictional standard.
In connection with the aforesaid jurisdictional allegations
the General Counsel subpenaed Respondent's books and
records and the books and records of Respondent's custom-
ers. Respondent and its customers complied with the
subpenas and met with the General Counsel prior to the
commencement of the hearing to work out a stipulation of
facts. The result was that at the start of the hearing the
General Counsel and Respondent stipulated that the busi-
ness enterprise involved in this case, Sparkie's, during the
calendar year 1978, performed services for some 14 enter-
prises who paid a total of $51,353 for these services.' The
parties also stipulated that each of these enterprises, during
the calendar year 1978, met one of the Board's direct
' In view of the conclusion I have reached herein, I find it unnecessary to
consider or pass upon the merits of the unfair labor practices alleged by the
General Counsel.
' The 14 enterprises and the moneys paid by them to Sparkie's are as
follows: Wells Fargo Bank. $3,849; U.S. Attorney. $5,761; Diversified
Computer Applications, $7.453; Hellmuth, Obata & Kassabaum, 5,300;
White Sheptson Inc., $1,775; Graphic Scanning Corp., 5,000; Dodge & Cox,
$2,613; Liberty House, $1,880; Childrens' Hospital, $3,531; St. Francis
Hospital, $1,340; Associated Air Freight, 3,834; University of California,
S3,800; San Jose Mercury News, $1,900; and Crocker National Bank, $3,317.
The stipulation did not break down these dollar amounts by month so as to
indicate the value of the services performed by Respondent and the value of
the services performed by Respondent's predecessor. Nor does the record
jurisdictional standards. At this point in the proceeding the
General Counsel indicated he was satisfied with the record
insofar as jurisdiction was concerned, withdrew the amend-
ments to the complaints concerning jurisdiction, and pre-
sented no further evidence on the subject.
Respondent presented evidence that, during the 4 months
in 1978 when it owned and operated Sparkie's, Sparkie's
business with several of the enterprises relied upon by the
General Counsel to assert jurisdiction decreased and/or
ceased,' as follows: Business with the U.S. attorney de-
creased "considerably" and by November 1978 ceased;
business with Diversified Computer Applications decreased
and by December 1978 ceased; business with Hellmuth,
Obata & Kassabaum was down 50 percent in November
1978 from what it had been prior to September 1, 1978, and
by December 1978 ceased; in November 1978 business with
Associated Air Freight ceased; business with Childrens'
Hospital was down substantially from what it was prior to
September 1, 1978, inasmuch as after September I Sparkie's
serviced only two of the hospital's departments rather than,
as previously, all of the departments.'
In addition to the foregoing, Respondent adduced the
following jurisdictional evidence:
1. Of the $1,775 worth of services performed by Sparkie's
for White Sheptson during 1978, $557 was received during
the period Respondent operated Sparkie's and the remaining
$1,218 was received during the period Sparkie's was oper-
ated by Respondent's predecessor. And during the first 4
months of 1979 Respondent performed $371 worth of
services for this enterprise.
2. Of the $2,613 worth of services performed by Sparkie's
for Dodge & Cox during 1978, $909 was received during the
period Sparkie's was operated by Respondent and the
remaining $1,714 was received during the period Sparkie's
was operated by Respondent's predecessor. Also, during the
first 3 months of 1979 Respondent performed $190 worth of
business for this enterprise.
3. Of the $1,340 worth of services performed by Sparkie's
for St. Francis Hospital during 1978, all but $195 was
received subsequent to September 1, 1978, but in November
1978 St. Francis, which previously had contracted with
Respondent and its predecessor to perform services for five
of its departments, reduced by three the number of depart-
ments serviced by Sparkie's.
The foregoing evidence constitutes all of the evidence
presented by the parties pertaining to the question of
jurisdiction.
indicate, other than in the case of approximately eight of these enterprises,
infra, whether they did business with both Respondent and its predecessor or
with only Respondent or with only its predecessor.
' The record also reveals that, since taking over Sparkie's, Respondent has
acquired customers who did not do business with Respondent's predecessor.
No evidence was introduced concerning the names of the new customers or
the volume of business involved or whether their operations meet one of the
Board's direct jurisdictional standards.
' Regarding Children's Hospital, the parties stipulated that, during the
hospital's fiscal year, which ended April 30, 1978, Sparkie's derived income of
$3,384 from this enterprise and further stipulated that, during the period from
September 1, 1978, through April 30, 1979, Sparkie's derived income of
$1,934 from this enterprise.
624
SPARKIE'S SPECIAL DELIVERY AND MESSENGER SERVICE
In determining whether to assert jurisdiction in cases
involving a successor-employer who allegedly has committed
unfair labor practices soon after taking over the predecessor-
employer's business, the Board treats the successor-employer
as if it had commenced operating a new business and applies
two independent jurisdictional tests; namely: (1) whether the
forward projection of the successor-employer's business for
the limited period it has been in operation satisfies the
Board's applicable jurisdictional standard; (2) whether
during a 12-month period prior to the successor-employer's
operation of the business the predecessor-employer satisfied
an applicable jurisdictional standard. Martin J. Baker, an
individual proprietor, d/b/a Galaxy Theatre, Hayloft The-
atre, and Mini-Art Cinema, 210 NLRB 695 (1974); and
Northgate Cinema, Inc. and Wyandotte Theater. Inc.., 233
NLRB 586 (1977). In the instant case the record, described
in detail supra, fails to establish that the predecessor-
employer's business during any 12-month period satisfied an
applicable jurisdictional standard s or that Respondent's
partial-year business projected forward satisfied an applica-
ble jurisdictional standard. Rather, the record establishes
only that the employing enterprise, Sparkie's, during the
calendar year 1978, the year in which all of the alleged
unfair labor practices occurred, had an indirect outflow of
sales and services across state lines amounting to barely over
$50,000' and thus meets the Board's jurisdictional standard
for nonretail establishments. See Edward Peterin and Robert
Greenlee, a Partnership, d/b/a Peterin and Greenlee Con-
' As indicated at fn. 2, supra. it is impossible to determine whether the
predecessor's business in 1978, when projected forward, satisfies an applicable
jurisdictional standard. But, even assuming that Sparkie's business for the
calendar year 1978, in the circumstances of this case, supports a presumption
that the predecessor would have satisfied the indirect outflow jurisdictional
standard if it had continued to operate Sparkie's throughout 1978, it is
insufficient to maintain a presumption that Respondent's operation of
Sparkie's satisfied the indirect outflow jurisdictional standard. For, even
though Respondent, as a successor-employer, operated Sparkie's essentially in
the same manner as its predecessor, the record shows that, shortly after
purchasing Sparkie's, Respondent ceased doing business with 4 enterprises
who were customers of the predecessor and substantially decreased its volume
of business with the 2 other customers of the predecessor, and that these 6
enterprises were among the 14 relied upon by the General Counsel to
demonstrate that Sparkie's, during the calendar year 1978, met the Board's
indirect outflow jurisdictional standard. In short, Respondent has rebutted
any possible inference that it would have satisfied the Board's indirect outflow
jurisdictional standard during its first 12 months in operation.
I Indirect outflow refers to sales of goods or services to users meeting any of
the Board's jurisdictional standards except the indirect outflow or indirect
inflow standard. See Siemons Mailing Service, 122 NLRB 81, 84 (1958).
'I find no merit to Respondent's contention that the Board must adjust its
discretionary jurisdictional standards to account for the effects of inflation.
Without reaching the merits of this contention I note that the Board appears
to be prohibited from raising its S50,000 nonretail standard inasmuch as Sec.
14(c) of the Act states that "the Board shall not decline to assert jurisdiction
over any labor dispute over which it would assert jurisdiction under the
standards prevailing upon August , !959." See Advance Detective Bureau.
Inc., and Advance Claim Service. Inc.. 226 NLRB 303, fn. 2 (1976).
struction Co., 172 NLRB 2110 (1968).' As discussed supra,
this is not the test used to determine whether to assert
jurisdiction over labor disputes which occur in the context of
a successorship where a successor-employer is charged with
the commission of unfair labor practices. The successor-
employer is treated as having commenced the operation of a
new business and its partial-year business projected or, since
it is a successor-employer engaged in essentially the same
business as its predecessor, there is a presumption that, if
before the change in ownership the enterprise was within the
scope of the Board's jurisdiction, it will continue to be so in
the immediate future. See Galaxy Theater, supra; Northgate
Cinema, Inc. and Wyandotte Theater, Inc., supra. Here,
there is no evidence that Respondent's partial-year business
projected forward met an applicable jurisdictional standard,
nor is there evidence which establishes that the Board would
have asserted jurisdiction over the predecessor-employer
prior to the change of ownership.
Based upon the foregoing I find that the General Counsel
has failed to establish that Respondent meets the Board's
applicable jurisdictional standards and, accordingly, I shall
recommend that the complaints herein be dismissed for this
reason.'
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER9
The complaints herein are dismissed in their entirety.
Because in cases such as this we deal with public rights and should not
deprive employees of their lawful rights because of neglect on the part of the
Board or its agents, I have given considerable thought as to whether this is
such a case and, if so, whether or not I should reopen the record, sua sponte,
to permit the General Counsel to present evidence with respect to the
predecessor's business for the 12 months immediately before the change of
ownership and with respect to Respondent's business after it took over
Sparkie's. In not reopening the record I considered that at one point in the
proceeding I indicated that I felt the General Counsel had established the
Board's jurisdiction. However, it is clear that the General Counsel did not rely
upon my erroneous view of the law in failing to present other evidence on the
question of jurisdiction, inasmuch as the General Counsel had already
presented his case-in-chief and had indicated he was satisfied with the
jurisdictional evidence. Also, in response to the General Counsel's subpenas
Respondent and its customers produced books and records which should have
enabled the General Counsel to apply the jurisdictional tests set forth in
Galaxy Theatre, supra. I can only infer that the General Counsel's failure to
do this was due to the fact that the application of these jurisdictional tests to
the facts and figures disclosed by the subpenaed records would not have
resulted in coverage.
' In the event no exceptions are filed as provided in Sec. 102.46 of the Rules
and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
625