Tom Thumb Stores, Inc.

National Labor Relations Board - Board Decisions

Dec 16, 1949

87 N.L.R.B. 1062 (N.L.R.B. 1949)

In the Matter of Toni TIIUMB STORES, INC.; EMPLOYER and RETAIL
GROCERY CLERKS INTERNATIONAL AssoCIATION, A. F. L., LOCAL 368,
PETITIONER
In the Matter of TOM THUMB STORES, INC., EMPLOYER and BUILDING
SERVICE EMPLOYEES INTERNATIONAL UNION, A. F. L., LOCAL 292,.
PETITIONER
Cases Nos. 16-RC-400 and 16-RC-417.-Decided December 16, 191.9
DECISION
AND
ORDER
Upon separate petitions duly filed, an order of the Regional Director
consolidating the above cases was made on August 12, 1949. A hear-
ing on the consolidated cases was. held before James R. Webster, hear-
ing officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
The business of the Employer :
The Employer, a Texas corporation, is engaged in the retail grocery
business and operates eight retail stores in the vicinity of Dallas,
Texas. During a 13-week period ending June 30, 1949, which is
representative of the Employer's operations, its purchases of food
products totaled $761,814.78, of which $33,323.11 was for meat and
groceries purchased from sources, and shipped from points, outside
the State of Texas. The record does not indicate what portion of its
remaining purchases, made from within-the- State wholesalers, orig-
inates outside the State. The Employer operates no warehouse or
wholesale plant of its own. All its sales are made locally.
The employer contends, contrary to the Petitioners' argument, that
'it is not engaged in commerce within the meaning of the National
Labor Relations Act. Although we do not find that the Employer's
operations are unrelated to commerce, we do not believe that the effect
of such operations on interstate commerce is so substantial that we
should assert jurisdiction over an enterprise of the character here
involved. 1 It has been the policy of the Board, in cases involving
1 Hom-Ond Food Stores, Inc ., 77 NLRB 647, distinguished but not overruled in Providence
Public Markets Company, 79 NLRB 1482 ( to which Chairman Herzog and Member Gray
dissented at pages 1485 and 1486, and which they still believe was wrongly decided).
87 NLRB No. 109
1062
TOM THUMB STORES, INC. 1063
various types of retail chain stores located in a. single State, to decline
to exercise jurisdiction on the ground that such operations are essen-
tially local in character, except where there are conspicuously large
amounts of imports from outside the State. We do not believe that
the amount of the imports here is sufficient to bring the case within
the latter group of cases which follow Providence Public Markets Co.
Accordingly, we shall dismiss the petitions.'
ORDER
Upon the basis of the foregoing findings of fact, and upon the entire
record in the case, the National Labor Relations Board hereby orders
that the petitions for investigation and certification filed herein be, and
they hereby are, dismissed.
MEMBER REYNOLDS, dissenting :
I cannot agree with the action of my colleagues in declining to
assert jurisdiction in this case, because I regard it as indistinguishable
from and controlled by Providence Public Market Compa'ty 2 and sub-
sequent Board decisions 3 involving retail food stores and groceries.
The majority relies on the Hom-Ond case' as justification for its
refusal to exercise discretion in favor of taking jurisdiction. In my
opinion the ultimate effect of our Providence decision has been to
overrule Hom-Ond. It is true that we distinguished Hom-Ond in
Providence primarily on the ground that in the former, although a
portion of the goods purchased originated outside the State, no inter-
state purchases were shipped directly to the employer, whereas in the
latter the record failed to "negate the inference" that a substantial
amount of the goods purchased which originated outside the State
was shipped to the employer directly across State lines. I do not
believe, however, that the succeeding cases which have consistently
reaffirmed the Providence decision have perpetuated this basis for
determining whether or not to assert jurisdiction.5 On the contrary,
I interpret these Board decisions as precedents for taking jurisdiction
of retail chain food stores where a substantial amount of the purchases
involved are shipped to the particular employer either directly or
2 See footnote 1, supra.
3 Bettendori's Select Foods, Inc., 85 NLRB 919; Colonial Stores, Incorporated, 84
NLRB 558 ; Florida Wholesale Grocery Co ., Inc., d/b/a Food Fair Stores, 83 NLRB 852;
Tanner-Brice Company, 82 NLRB 477 ; Piggly -Wiggly Corporation, 82 NLRB 267; Tip Top
Grocery Company , 81 NLRB 955; Margaret Ann Food Stores, Inc., 78 NLRB 852.
4 See footnote 1, supra.
I In this connection , I am unable to find any case involving chain retail food stores
since Providence which cites Hom-Ond as authority for refusing to assert jurisdiction.
1064 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD
indirectly in interstate commerce s Considering the instant case in
this posture, I note that the Employer purchased food products total-
ing $761,814.78 of which $33,323.11 consisted of goods shipped directly
across State lines. Although the record does not indicate the exact
quantity of goods purchased by the Employer which originated out-
side the State of Texas, in view of the total amount of purchases
and the nature of the Employer's business,' it is a fair presumption
that the amount was substantial. Thus, it appears to me that con-
sistency with past Board decisions requires the exercise of jurisdiction
in this case.
Moreover, assuming that the "substantial amount of direct ship-
ments" test enunciated in the Providence case is still deemed applicable
by my colleagues, I do not believe that it makes their position any
more tenable. The goods shipped directly to this Employer across
State lines are approximately 5 percent of its total purchases. A
perusal of other Board decisions to ascertain whether this figure is
"substantial" reveals that we have asserted jurisdiction in cases where
the amounts of direct shipments were approximately 7 percent, 10
percent, 15 percent, and 22 percent.s It would seem that if these
percentage figures are considered "substantial" so should the 5 percent
figure in this case.
In view of the foregoing, whether the facts in the instant case are
considered in the light of my interpretation of past Board precedents
since the Providence case or in the light of the "direct shipment"
test applied in that case, I can perceive of no valid reason for declining
to exercise jurisdiction over the present Employer.
In the Bettendorf's, Tanner-Brice, Piggly -TViggly, and Tip Top cases, footnote 3, supra,
the Board , in addition to indicating the amounts or percentages of goods shipped directly
to the particular employer from points outside the State, specifically mentioned and
considered the amounts or percentages of goods which originated outside the State and
were shipped indirectly to the employer . In the Margaret Ann and Colonial Stores cases,
footnote 3, supra, the Board referred only to the amounts of goods purchased which origi-
nated outside the State . Apparently the records in those cases did not indicate the
amounts of direct shipments , if any . In the Florida case, footnote 3, supra, although
the decision does not detail the commerce factors, the record indicated only the amount
of goods purchased which originated outside the State and the Board asserted jurisdiction
on this basis.
7 Presumably the Employer sells national brand canned goods and food products and
perishable produce which are obtained initially from outside the State.
8 Bettendorff's case, footnote 3, supra-7 percent ; Peter Muscarelle et al., d /b/a Mus-
carella Company, 87 NLRB 120-10 percent ( although this case involved a buyer and
seller of bananas at wholesale the Providence case is cited as authority for taking jurisdic-
tion ) ; Piggly-Wiggly case, footnote 3, supra-15 percent ; Tanner-Brice case; footnote 3,
supra-22 percent . This is, of course , based upon the premise that the "direct shipment"
test alone was being applied in all these cases. As a matter of fact in each of them men-
tion was also made of the amounts of indirect shipments.