Taichert's, Inc.

National Labor Relations Board - Board Decisions

Jan 13, 1954

107 N.L.R.B. 779 (N.L.R.B. 1954)

TAICHERT'S, INC. 779
and substantial relation to trade, traffic, and commerce among the several States, and tend
to lead to labor disputes burdening and obstructing commerce and the free flow of com-
merce
V. THE REMEDY
It has been found that the Respondent has engaged in the unfair labor practice of refusing
to bargain collectively with the chosen representative of its employees it will therefore
be recommended that it cease and desist therefrom and from like and related conduct.
It will further be recommended that the Respondent bargain collectively, upon request,
with the Union as the exclusive representative of its employees in the aforesaid appropriate
unit
Upon the basis of the foregoing findings of fact and upon the entire record in the case,
the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1 International Union of Electrical, Radio and Machine Workers, CIO, Local 242, is
a labor organization within the meaning of Section 2 (5) of the Act.
2 All factory production, maintenance, clerical employees, and inspectors who work
on the floor in the production areas, and the production control clerks employed at the
Respondent's Dover, New Hampshire, plant excluding executive and office clerical em-
ployees, superintendents, foremen and general foremen, engineers, inspectors of the engi-
neering department, guards, and supervisors as defined in the Act, constitute a unit ap-
propriate for the purposes of collective bargaining within the meaning of Section 9 (b)
of the Act.
3 International Union of Electrical, Radio and Machine Workers, CIO, Local 242, was
on August 30, 1951, and at all times since has been, the exclusive representative of all
employees in the aforesaid unit for the purposes of collective bargaining within the mean-
ing of Section 9 (a) of the Act.
4 By refusing on and after September 10, 1951, to bargain collectively with the afore-
said Union as the exclusive representative of the employees in the appropriate unit, the
Respondent has engaged in and is engaging in an unfair labor practice within the meaning
of Section 8 (a) (5) of the Act
5 By the aforesaid unfair labor practice, the Respondent has interfered with, restrained,
and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act,
thereby engaging in an unfair labor practice within the meaning of Section 8 (a) (1) of the
Act
6 The aforesaid unfair labor practices affect commerce within the meaning of Section
2 (6) and (7) of the Act
[Recornmeudations omitted from publication ]
TAICHERT'S, INC. and RETAIL CLERKS INTERNATIONAL
ASSOCIATION, LOCAL 1564, AFL. Case No. 33-CA-226.
January 13, 1954
DECISION AND ORDER
Upon a charge filed on May 7, 1953, and an amended charge
filed on June 8, 1953, by Retail Clerks International Associa-
tion, Local 1564, AFL, herein called the Union, against
Taichert's, Inc., of Los Alamos, New Mexico, herein called
the Respondent, the General Counsel of the National Labor
Relations Board, herein respectively called the General
107 NLRB No. 167
780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Counsel and the Board, by the Regional Director for the
Sixteenth Region (Fort Worth, Texas), issued his complaint,
dated July 6, 1953, alleging that the Respondent had com-
mitted and was committing unfair labor practices affecting
commerce, within the meaning of Section 8 (a) (1) and (5)
and Section 2 (6) and (7) of the National Labor Relations
Act, 61 Stat. 136, herein called the Act. Copies of the com-
plaint, charges, and notice of hearing were served on the
Respondent and the Union. The Respondent duly filed its
answer, in which it denied the commission of any unfair
labor practices.
Pursuant to notice, a hearing was held before James R.
Hemingway, the Trial Examiner duly designated by the Chief
Trial Examiner, at Los Alamos, New Mexico, on July 28
and 29, 1953. The General Counsel and the Respondent were
represented by counsel and the Union was represented by
two officials. All participated in the hearing and were af-
forded full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing upon
the issue.
On September 15, 1953, the Trial Examiner issued his
Intermediate Report, finding that the Respondent had not
engaged in the unfair labor practices alleged in the com-
plaint, except for an isolated instance of interrogation of
an employee, and therefore recommending that the com-
plaint be dismissed in its entirety. Thereafter, the General
Counsel and the Union filed exceptions to the Intermediate
Report and supporting briefs. i
The Board has reviewed the rulings of the Trial Examiner
made at the hearing and finds that no prejudicial error was
committed. The Board has considered the Intermediate Re-
port, the General Counsel's exceptions and brief, and the
entire record in the case.
The Respondent is a New Mexico corporation with its
principal office at Santa Fe, New Mexico. It operates variety
stores at Santa Fe, Gallup, Los Alamos, and Albuquerque,
all in New Mexico. The Los Alamos store, with which this
proceeding is concerned, employs only about 9 people. During
the 12-month period ending December 31, 1952, purchases
for resale at the Los Alamos store were valued at approxi-
mately $ 115,000, of which about 64 percent was received
from outside the State. During the same period the store's
sales totaled $ 180,000. All of these were made to local
customers in Los Alamos.
The Respondent operates its Los Alamos store under a
contractual arrangement with the Zia Company, hereinafter
called Zia, paying to Zia a rental based on a percentage of
the gross sales for the physical property used by the store.
1 As the Union's exceptions and brief were not timely filed, they have not been considered
by the Board. Myerstown Hosiery Mills, 102 NLRB 1033.
TAICHERT'S, INC. 781
Zia in turn - has a cost -plus-fixed - fee contract with the
Atomic Energy Commission to maintain and operate all
property in the county of Los Alamos , New Mexico. The
AEC first decides what types of businesses are needed in
Los Alamos , then Zia makes the licensing agreement. Entry
to Los Alamos is by AEC pass but the variety store sales
are made to the public at large . Los Alamos , both as a com-
munity and as a functional project, is devoted entirely to
the AEC program.
The Trial Examiner has recommended that we assert
jurisdiction over this small store on the ground that it has
a "substantial impact on National Defense" and our dis-
senting colleague agrees with the Trial Examiner.
We are unable • to agree . We recognize of course that
Federal intervention in labor disputes which have a real
impact on national defense is especially warranted, par-
ticularly in these times . But, we consider it unrealistic
in the extreme to say that this small retail store employ-
ing nine persons is essential to our national defense pro-
gram just because it happens to be located in Los Alamos.
The assertion of jurisdiction here would , in our opinion,
disclose not so much concern with national welfare as a
bureaucratic impulse to push the jurisdiction of this Board
to its uttermost limits.
We respect our dissenting colleague ' s views in opposi-
tion to our own , but we cannot agree with them. In view of
the depth of feeling displayed in his dissent , it perhaps
should be pointed out that this decision does not presage.
an abdication by the majority of jurisdiction over labor
disputes which, by common sense standards , have a real
and substantial impact on national defense . We agree with
Member Murdock that this Board should step into labor
disputes which are substantial in character, and particu-
larly where our national welfare is involved . It is appro-
priate to point out that this case does not involve a manu-
facturer of tanks or guns or bombs or any enterprise produc-
ing goods or furnishing services or otherwise realistically
concerned with our defense effort . This case relates to a
small variety store employing nine persons which happens
to be located in Los Alamos . Our colleague apparently
feels that the atomic project there will be imperiled if we
decline to intervene in this case . The complete explana-
tion of our disagreement with him lies in the fact that we
do not think so. We believe that the authority and resources
of the Federal Goverment can be better employed in han-
dling cases which have a more meaningful impact on our
national life . Accordingly , we shall decline to assert juris-
diction, and dismiss this complaint.
[The Board dismissed the complaint.]
337593 0 - 55 - 31
782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Member, Murdock , dissenting:
I cannot avoid either the conclusion or the expression
thereof that the dismissal of this complaint on jurisdic-
tional grounds constitutes serious error . I-disagree not
only because the decision marks a radical departure from
the Board ' s jurisdictional plan with respect to enterprises
having a substantial effect on the national defense ; but also
because, plan or no plan , I believe the majority ' s approach
to the problem of jurisdiction over enterprises affecting
the national defense as marked out in this case represents
an error of judgment which may have unfortunate conse-
quences.
In establishing its jurisdictional plan, the Board created
a special category for enterprises affecting the national
defense because it felt that in that area in particular, be-
yond all others , it had a special responsibility as a Federal
agency to guard against industrial disputes which might
have an adverse impact on the defense effort . Accordingly,
it set up no minimum amounts of out - of-State inflow or out-
flow of goods or services as the basis for asserting juris-
diction in this area ; assuming legal jurisdiction , the only
test was, would the enterprise substantially affect the na-
tional defense ? In answering that inquiry, ever since the
policy was first announced in the Westport case, 2 the Board
has taken a liberal view in favor of asserting jurisdiction--
practically speaking almost a de minimis test. It has not
undertaken to measure the exact degree of impact on the
national defense--the indispensability of particular goods or
services . I doubt our competence to do so. To my knowledge
until today it has never dismissed a national defense case
by characterizing particular goods or services as insub-
stantial -- therefore not warranting the assertion of juris-
diction . It has taken cases with far less dollar amounts
involved and in areas far less important than the atomic
energy field. 3
In the Richland Laundry & Dry Cleaners case the Board
took jurisdiction of a laundry and dry cleaning establishment
in Richland , Washington , laying down the rule which should
control this case:
Our decision that it would best effectuate the pur-
poses of the Act to exercise jurisdiction here is based
solely on the Respondent Employer ' s relationship to
the national defense effort , arising from his license
to do business on a United States reservation devoted
2 Westport Moving & Storage Co , 91 NLRB 902.
3 In the Westport case the employer made crates for shipping personal effects of military
personnel and its gross receipts were $21,000
See also, e.g , Clyde M . Furr, 98 NLRB 1288 Furr had a $1,740 subcontract to do caulking
on 3 dormitories and a fire station at one end of an airport. The principal contract in the
amount of $300 , 000 was with U S . Army Corps of Engineers.
TAICHERT'S INC. 1 783
to atomic energy . , . . In the Board ' s opinion , any em-
ployer doing business on such an atomic energy reser-
vation, whether or not his business is absolutely essen-
tial to the inhabitants of the community , is nonetheless
so identified with the Government ' s national defense
program as to warrant the full exercise of the Board's
power to assert the jurisdiction conferred on it by the
Act. 4
That there is legal basis for the assertion of jurisdiction
here there can be, of course , no doubt . The 4 stores which
the Employer operates in New Mexico have total out-of-
State imports valued at $449,320 . 5 Even the Los Alamos
store involved in this case itself has out-of-State inflow
of goods valued at $75,000 . The question of asserting juris-
diction is purely one of policy.
Los Alamos , New Mexico , contains an important test
laboratory of the Atomic Energy Commission . The majority
opinion admits that the sole purpose of its existence is to
promote the atomic energy program, that all working resi-
dents are deemed essential to that program, and that the
Atomic Energy Commission determines the essentiality of
given types of businesses to the residents , which businesses
are then licensed to operate in Los Alamos. This Respondent
would not be operating a store in Los Alamos but for the
determination of the Atomic Energy Commission that it is
essential to the residents there who in turn are deemed
essential to the atomic energy program of the United States.
Yet my colleagues presume to make the inconsistent solemn
pronouncement that this Respondent's operations do not have
a sufficient impact upon the national defense effort to justify
our taking jurisdiction . The stated basis for their conclusion
is that the case only involves a "small retail store" which
just "happens to be located in Los Alamos " and their feel-
ing that " the atomic project there will [not ] be imperiled if
we decline to intervene in this case ." I wonder if my colleagues
would feel any differently if it were a grocery store instead
of a variety store? As far as I am concerned I do not intend
to review or go behind the determination of the Atomic Energy
Commission that certain types of business are essential to
the Los Alamos workers and attempt to decide whether a
particular business is one whose cessation would "imperil"
the atomic energy project--even though my refusal to do
so and adherence to established precedents brings forth the
criticism that my concern is more with a "a bureaucratic
impulse to push the jurisdiction of this Board to its utter-
most limits" rather than with "national welfare."
493 NLRB 680, enforced 207 F . 2d. 305 (C. A. 9) This rule followed and applied in C &
H Food Stores , 100 NLRB 1483, in taking jurisdiction of retail grocery stores at Richland
and North Richland , Washington , and in Universal Food Services , Inc., 104 NLRB 1
5 This includes a projected annual figure of $166 , 320 for its Albuquerque store which had
been in operation only 2 months at the 4Ime of hearing.
784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Although my colleagues refer to a "small retail store,"
they choose to overlook the fact that the Respondent's 4
stores in New Mexico have a combined out-of-State inflow
of goods amounting to $449,320. In the past the Board has
considered an employer ' s entire operations for jurisdictional
purposes . A direct inflow of $500,000 would have warranted
taking jurisdiction of this employer under the Federal Diary 6
standard ( as yet not reversed ) applicable to any commercial
enterprise without regard to relation to the national defense.
I can scarcely believe that the national defense concept means
so little that it cannot counterbalance the $50,680 deficiency
in inflow below the $500,000 standard which would have
warranted taking jurisdiction of this Employer as an ordinary
commercial enterprise anywhere. If it is necessary to meet
the inflow or outflow tests for ordinary commercial enterprises,
then obviously there is no point in having a national defense
concept.
What makes the majority ' s decision even harder for me to
understand is the fact that in the District of Columbia and
Federal territories like Hawaii and Puerto Rico, the Board
exercises plenary jurisdiction - -it will assert jurisdiction
over anything from a bakery or shoe repair shop to a hotel
or a distillery . To my knowledge the Board has never dis-
missed a case involving a commercial enterprise in those
places . The Board only recently took jurisdiction over an
individual operating a combination " restaurant , bar, bakery,
fruit stand, soda fountain , and candy shop" in Rio Piedras,
Puerto Rico, with purchases and receipts each amounting
to "approximately $ 10,000 ."T Whatever the legal technical-
ities may be , realistically Los Alamos is a Federal reserva-
tion akin to a territory and the considerations which dictate
the exercise of plenary jurisdiction in the latter merit the
exercise of jurisdiction in the former even apart from the
overriding consideration of the effect on national defense.
I find it difficult to understand the value judgment which
moves this Board to take jurisdiction of restaurants and
soda fountains in Puerto Rico while refusing to take juris-
diction of an enterprise declared by the Atomic Energy
Commission to be an essential business in a town whose
residents are essential to the atomic energy program of
the United States . I do not believe that the Korean truce
is justification for this Board to be less concerned with
the impact of industrial disputes on the national defense
now than it has been in the past 3 years. 8 Certainly any
doubt as to the effect on national defense should be resolved
in favor of the assertion of jurisdiction.
6 91 NLRB 688
TGabino Martinez, d/b/a Restaurant El Alcazar, 107 NLRB 228.
8 "The peril to the peace and security of the entire world still is as great as it ever was."
Arthur S. Flemming, Defense Mobilization Director, Washington Post, January 3, 1954.
TAICHERT'S, INC 785
I have also reached the point where I feel constrained to
register a protest against the seemingly haphazard hacking
away at the Board's jurisdictional policy which has been
going on for several months, of which the instant case is
not an isolated example. The cases issued do not reveal
either the philosophy behind the wholesale retreat which
has been taking place on the jurisdictional front or the
depth to which it is intended to be carried. I am concerned
with those questions, and also with the resulting state of
confusion as to what is the Board's current jurisdictional
policy.
The present (or at least recent) jurisdictional policy of
the Board was adopted in the summer of 1950 after a long
and careful "study of the pattern emerging from the past
decisions."9 It was adopted only after the most careful
consideration by at least two committees as well as the
Board and reflected the wisdom gained from long experience
in dealing with a difficult problem which had long plagued
the Board. Its existence has saved the Board and its staff
countless time and energy which had previously been dis-
sipated on wrestling with questions of jurisdiction on an
ad hoc basis, thus leaving the Board more time to deal
with difficult legal problems, although even then there never
seems quite enough. The existence of these well-defined
standards, carefully publicized, has likewise had the bene-
ficial effect of notifying employers and labor organizations
with reasonable certainty whether or not the Act would be
applied to them and has enabled them to govern their actions
accordingly. Certainly they are entitled to no less. The juris-
dictional plan has survived court tests and, so far as I am
aware, has evoked no strong criticism outside the Board,
but rather seems to have achieved general acceptance. The
Board has demonstrated its ability to keep up with the
flow of cases produced by this plan during the 3 years of
its existence. Certainly a rather heavy burden will rest on
those who would make any drastic changes in the plan to
demonstrate the necessity of such a change.
Plainly any such plan cannot be deemed perfect. It merits
reexamination periodically, and I can understand that new
Board members would particularly desire to do this. But
any such reexamination and revision should only be made on
an overall basis. It should be done bearing in mind the policy
of the Act which we are mandated to effectuate, and the
funds which Congress has given us with which to do the job.
It should not be forgotten that the declared congressional
policy is one of "encouraging the practice and procedure of
collective bargaining" as a means of avoiding industrial
disputes burdensome to interstate commerce. Congress has
said that employees should be protected in both freedom of
9 Sixteenth Annual Report of the National Labor Relations Board, 1951, p. 15
786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
self-organization and the right to refrain from concerted
activity--from unfair labor practices by employers and by
unions . But basically it has said that collective bargaining
is a good thing for the industrial economy and should be
encouraged . It has not said that collective bargaining is
a good thing for big businesses but not for small businesses;
it has not said that employees of large employers should be
protected from unfair labor practices by employers and
unions but that the rights of employees of small employers
may be trampled on with impunity by employers and unions
alike . To the extent that congressional appropriations permit,
therefore , I view it as our responsibility under the congres-
sional policy to make available the benefits of collective
bargaining and the protection of employee and employer rights.
When reduced appropriations dictate the wisdom of narrowing
the reach of our discretionary jurisdiction pro tanto, then
naturally we must consider in what areas can we retreat
with the least harm.
In my view the only reasonable approach to the problem of
jurisdiction would be for the Board to adhere to the present
jurisdictional plan unless and until it makes a comprehensive
reexamination and adopts a revision or substitute . Instead
it has lapsed into what appears to be an ad hoc approach to
some cases which has resulted in confusion as to what the
Board ' s resulting jurisdictional policy is. These decisions do
not even mark the boundary lines of departure from the juris-
dictional plan . Consequently employers , labor organizations,
Regional Offices, Trial Examiners , legal assistants , and Board
Members themselves stand equally in the dark today on what
the Board ' s jurisdictional policy is in substantial areas.
I need only cite a few examples in issued decisions dis-
missing cases on jurisdictional grounds, of the extent to
which certainty has been replaced with uncertainty and con-
fusion : As to the transit industry see San Jose City Lines; w
as to public utilities see Intercounty Rural Electric Co-
operative ; 11 as to the taxicab business see Checker Taxi; 't
as to the policy of the Board with respect to enterprises
affecting the national defense see the instant case . Who can
tell what kind of services the Board deems necessary to the
operation of firms engaged in interstate commerce for the
purpose of meeting the Hollow Tree test for asserting juris-
diction since the issuance of the Local 1083 United Auto
Workers ( Kearney & Trecker ) 13 case? The latter case is but
one of several in which I have dissented which have reversed
established precedents applying sections of the plan to par-
ticular types of business reversals which I felt have been
10 106 NLRB 1167.
11106 NLRB 1316.
12 107 NLRB 266.
13107 NLRB 470.
McQUAY INCORPORATED 787
based upon an unrealistic view of the impact on interstate
commerce of industrial disputes in the business involved-14
14See also Hill & McCormick, 107 NLRB 491; Brooks Wood Products Co. 107 NLRB 237.
McQUAY INCORPORATED and INTERNATIONAL UNION,
UNITED AUTOMOBILE, AIRCRAFT & AGRICULTURAL
IMPLEMENT WORKERS OF AMERICA, (UAW-CIO), Pe-
titioner . Case No . 18-RC-2052. January 13, 1954
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the Na-
tional Labor Relations Act, a hearing was held before Max
Rotenberg, hearing officer. The hearing officer's rulings
made at the hearing are free from prejudicial error and
are hereby affirmed. 1
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the mean-
ing of the Act.
2. 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 mean-
ing of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 3
4. The appropriate unit:
The parties are in agreement that a unit of production and
maintenance employees is appropriate for the purposes of
collective bargaining. There is disagreement, however, as
1 The hearing officer referred to the Board the IBEW's motion to dismiss the petition on the
ground that there was pending an unfair labor practice charge against the Employer which had
not been waived by the IBEW. We have been administratively advised that the Regional Director
had dismissed Intervenor IBEW's charge (Case No. 18-CA-560) a day before the commence-
ment of the hearing, and on the same day duly served notice of the dismissal upon the IBEW.
In these circumstances, we are of the opinion that it will best effectuate the policies of the Act,
and promote the orderly processes of collective bargaining, to direct an immediate election
herein, even though an appeal from the dismissal of the charges is pending before the General
Counsel. See United States Smelting, Refining &MiningCompany, 93 NLRB 1280. Accordingly,
the IBEW's motion is denied.
2Local 110, International Brotherhood of Electrical Workers, AFL (herein referred to as
IBEW) and Minnesota Factory Workers' Union were permitted to intervene at the hearing.
3 We find no merit in the IBEW's contention that its contract with the Employer is a bar to
this proceeding. The contract with the Employer was effective from August 1, 1951, to
December 1, 1953, and year to year thereafter unless changed or terminated upon 60 days
written notice prior to November 30, 1953. On September 2, 1953, the IBEW gave the Em-
ployer written notice of its desire to terminate this contract. On September 10, 1953, the em-
ployer gave the IBEW written notice of its desire to negotiate a new contract. As timely
notice to terminate the contract was given by both the Employer and the IBEW, and as the peti-
tion involved herein was filed on September 4,1953, prior to the "Mill B" date of the contract,
we find that the contract is not a bar to a present determination of representation.
107 NLRB No. 160.