Waitresses and Cafeteria Women's

National Labor Relations Board - Board Decisions

Oct 31, 1949

86 N.L.R.B. 1166 (N.L.R.B. 1949)

In the Matter Of WAITRESSES AND CAFETERIA WOMEN'S LOCAL No. 305,
WA.TERS LOCAL No. 189, BARTENDERS, CARD & POOLROOM WORKERS
LOCAL No. 496, COOKS & ASSISTANTS LOCAL No. 207, HOTEL SERVICE
EMPLOYEES LOCAL No. 661, AND LOCAL JOINT EXECUTIVE BOARD OF
H. S-, R. E. I. A . AND B. I. L. OF A., COMMONLY KNOWN` AS CULINARY
WORKERS ALLIANCE, EACH AFFILIATED WITH HOTEL & RESTAURANT
EMPLOYEES AND BARTENDERS INTERNATIONAL UNION, AFL and
HALESTON DRUG STORES, INC.
Case No. 36-CB-7.-Decided October 31, 1949
DECISION
AND
ORDER
On August 11, 1949, Trial Examiner Charles W. Whittemore. issued
his order granting the motion of the Respondents for dismissal of
the complaint in the above-entitled proceeding on the ground that
the assertion of jurisdiction over the operations of the Employer
involved would not effectuate the policies of the Act. Thereafter the
General Counsel filed a timely Request for Review of the Trial Exam-
iner's Order, pursuant to Section 203.27 of the Board's Rules and
Regulations, Series 5, as amended. The Board has considered the
entire record in this proceeding, including the arguments advanced
by the parties.' For the reasons hereinafter stated, the order of the
Trial Examiner dismissing the complaint is affirmed.
I. THE TRIAL EXAMINER'S ORDER
In dismissing the complaint on the ground that the assertion of
jurisdiction would not effectuate the policies of the Act, the Trial
Examiner relied on our dismissal of a representation petition by the
i The Employer filed a motion for reconsideration of the Trial Examiner 's Order with
the Chief Trial Examiner , and filed exceptions to the order with the Board.. Section 203.27
of the Board' s Rules and Regulations provides that review of a Trial Examiner 's Order
dismissing a complaint before issuance of an Intermediate Report may be had upon a
request for review addressed to the Board. In view of the fact that the case is properly
before us on the General Counsel's Request for Review, filed in accordance with the Board's
Rules and Regulations, we have fully considered all the issues raised by the Employer's
motion and exceptions.
86 N. L. R. B., No. 125.
1166
WAITRESSES AND CAFETERIA WOMEN'S LOCAL NO. 305 1167
Employer involved herein, in Matter of Haleston Drug Stores, Inc.'
The Employer and the General Counsel contend that the dismissal
without hearing is erroneous because it precluded the possibility of
taking evidence on the commerce question. We find no merit in this
-contention. Like the Board, the Trial Examiner may take official
notice of the record and findings of the Board in prior proceedings
involving the same parties.3 It cannot, therefore, be said that the
'Order of the Trial Examiner was not based on evidence.
In any event, for present purposes we shall assume the truth of
the additional facts which the Employer and the General Counsel
,offer to prove concerning the relationship of the Employer's busi-
ness to commerce. The amounts of the various transactions differ
quantitatively from those which appear in the record of the repre-
sentation proceeding. Nevertheless they still show no more than
that the Employer operates a chain of retail drug stores in Portland,
-Oregon,. making substantial out-of-State purchases but selling all of
its merchandise .locally.4 That is precisely the situation that pre-
,sented itself in the representation case. Retail drug stores are essen-
tially local operations, and in such cases we have frequently declined
to assert jurisdiction where the only factor in favor of doing so was
a substantial volume of out-of-State purchases.5 Accordingly we see
no reason to reverse our earlier finding with respect to this Employer.6
H. THE DISCRETION OF THE BOARD TO DISMISS A COMPLAINT
However, the General Counsel's attack upon the Trial Examiner's
order goes beyond the jurisdictional facts in this particular case. It
is vigorously contended again that, once the General Counsel has
issued a complaint, this Board is without discretion to dismiss a com-
plaint solely because it believes that to assert jurisdiction would not
effectuate the policies of the Act. The question of our power to dis-
miss a complaint for such reasons was considered and discussed at
some length in our opinion in the A-1 Photo case, in which we affirmed
2 82 N. L . R. B. 1264.
' It is immaterial that the same unions were not involved in both proceedings. The
jurisdictional facts upon which the commerce finding was based are those relating to the
business of the Employer , who is the same in both cases.
4 The fact that the Employer makes an unspecified quantity of sales to transients from
out of the State who may be staying at the hotels in which its stores are located does not
establish a substantial volume of out-of-State sales sufficient to require us to reverse
our earlier finding.
See Matter of Sta-Kleen Bakery , Inc., 78 N. L . R. B. 798; Matter of Fehr Baking Com-
pany, 79 N . L. R. B. 440; Matter of Creamland Dairies, Inc., 80 N. L. R. B. 106.
6 While our findings of fact are not res 7udicata in any other proceeding , we will ordinarily
not reverse them in the absence of some compelling consideration , such, for example, as a
material change in circumstances . See Matter of Atlanta Brick and Tile Company,
83 N. L . R. B. 1154 ; cf. Matter of Transit Casualty Company , 83 N. L. R. B. 857.
7 Matter of Local 905 of the Retail Clerks International Association (AFL), et al.
( H. W. Smith d/b/a A-1 Photo Service ), 83 N. L. R. B. 564.
1168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the existence of that power . Since that opinion was issued, however,
additional arguments bearing upon this issue , including those urged
by the General Counsel in the instant case, have been presented to us.
We consider it appropriate at this time to reappraise this problem in
the light of some of the arguments which have been made, and to
remove any misunderstanding that may exist as to the purport of the
Board's unanimous decision in the A-1 Photo case.
First, a word of history, so that the issue may be viewed in proper
perspective . Under the provisions of the original National Labor
Relations Act, the Board exercised ultimate supervision over all steps
in the procedural process before the Board and the courts , from the
investigation of charges and the issuance of complaints to court appli-
cation for the enforcement of its orders. In the exercise of its dis-
cretion, the Board could decline to issue complaints .8 After the
issuance of a complaint and after hearing, it retained the lawful dis-
cretion, inherent in its function of administering the Act, to dismiss
a complaint for policy reasons .9 It also had broad discretion to
determine the remedy, if any, which would effectuate the policies of
the Act.70 Finally, the statute left it to the Board's discretion to
determine whether or not to seek enforcement of its orders in the
courts."
In short, the Board was permitted to make policy determinations
at every stage of a proceeding . There was nothing unique in the
existence of this permissive power in the Board. Indeed, the presence
of this discretion in the administrative agency charged with respon-
sibility for effectuating the policy of a public statute is the hallmark
of the administrative process. It is this very characteristic which
distinguishes an administrative agency from a court of law. The latter
adjudicates private rights according to the law of the land . It is not
generally concerned with policy. 12 But an administrative agency, by
8 N. L. R. B. v. Indiana & Michigan Electric Company, 318 U. S. 9, 18-19.
ON. L. R. B. v. Indiana & Michigan Electric Company, supra; N. L. R. B. v. Federal Engi-
neering Company , Inc., 153 F. (2d) 233 , 234 (C . A. 6) ; Bethlehem Steel company v.-New
York State Labor Relations Board, 330 U. S. 767, 776 ; Matter of Midwest Piping and Sup-
ply Co., Inc., 63 N. L. R. B. 1060; Matter of Brown & Root, Inc., 51 N. L. R. B. 820; Matter
of Consolidated Aircraft Corp., 47 N. L. R. B. 69; Matter of Wickwire Brothers, 16 N. L. R. B.
316; Matter of Godchaux Sugars, Inc., 12 N. L. R. B. 568.
10 Phelps Dodge Corporation v. N. L. R. B., 313 U. S . 177, 194-195 ; International Asso-
ciation of Machinists v. N. L. R. B., 311 U. S. 72, 82 ; Matter of The Ebco Manufacturing
Company, 67 N. L. R . B. 210 ; Matter o f Providence Gas Company , 41 N. L. R . B. 1121 ;
Matter of Shenandoah-Dives Mining Company, 11 N. L. R. B. 885 ; S. Rep. 573, 74th Cong.,
1st Sess. p. 15.
11 Section 10 (e) of the original Act carried over unchanged in the amended Act pro-
vides : "The Board shall have power to petition any circuit court of appeals . . . for the
enforcement of such order. . . (Emphasis supplied.) See also N. L. R. B. v. Sunshine
Mining Co., 125 F. (2d) 757 (C. A. 6).
12 But even a Federal court is not without discretion to refuse to exercise existing juris-
diction. See Meredith v. City of Winter Haven, 320 U. S. 228 , for a discussion of some
of the instances where the exercise of such discretion may be justified by considerations
WAITRESSES AND CAFETERIA WOMEN'S LOCAL NO. 305 1169
its very nature, is governed by policy considerations, because it is
concerned with public and not private rights.13 Hence, it must always
have a large measure of discretion in discharging its functions. For
this reason, cases which hold that when a law court has jurisdiction,
it must exercise it, and that when it finds a violation of laNv it must
grant a remedy, are inapplicable to an administrative tribunal such
as this Board.
It is true, of course, that the 1947 amendments to the Act modified
the Board's structure to the extent that they created the statutory office
of General Counsel and gaveto him
final authority, on behalf of the Board, in respect of the investi-
gation of charges and issuance of complaints under Section 10,
and in respect of the prosecution of such complaints before the
Board, . . .
But there is no evidence either in the legislative history of the Labor
Management Relations Act, or in the language of the Act itself, which
indicates a purpose to change the entire character of the Board from a
quasi-judicial agency to a pure court of law, hedged about with all the
rigidities and limitations of such a tribunal.
In the new legislation, Congress was concerned only with separating
the prosecuting and adjudicating functions within the Board. This
Congress accomplished, by creating the office of General Counsel, to
whom it transferred the investigatory and prosecuting functions previ-
ously vested in the Board, with all accompanying discretion. For the
rest, the structure and powers of the Board remained substantially
Iuichanged. There is no basis for an inference that under these circum-
stances Congress intended to remove from the Board the discretionary
authority it had previously exercised as an incident of its adjudicating
funetion,14 including its power to dismiss a complaint, after hearing,
for reasons of policy. The Board Members may no longer exercise a
discretionary judgment at the beginning of an unfair labor practice
proceeding. But this is a far cry from saying that they may not do so
at subsequent stages of the proceeding, when the case is properly before
of paramount public policy. And cf. 28 U. S. C. A., sec. 1254, defining the discretionary
certiorari jurisdiction of the Supreme Court.
11 Administrative.agencies "do more than judicially and impartially apply the law as they
find it to a controversy between private parties : they are charged with the carrying out of
definite policies involving discretion and the formulation of subordinate policies to effec-
tuate the purpose of the laws which they administer. The courts, on the other hand, take
the law as they find it without any particular obligation to accomplish a particular public
purpose or secure a certain result". Pillsbury, "Administrative Tribunals," 36 Harv. L.
Rev. 405, 423 (1922). See also Chamberlain, The Judicial Function in Federal Adminis-
trative Agencies (1942) p. 55. In deciding upon a remedy, the Supreme Court has admon-
ished the Board that it must consider not only the policy of the Act, but that of other
statutory enactments. Southern Steamship Company v. N. L. R. B., 216 U. S. 31, 46.
Queensboro Farm Products , Inc. v. Wickard, 137 F. '(2d) 969, 977 ( C. A. 2).
1170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
them, or that the prosecutor's original exercise of discretion is binding
on all persons for all time.
To sum up, then, the effect of the amendments : The General Counsel
has the unfettered discretion to determine whether to issue a complaint
and how to prosecute it. However, once the complaint has issued and
the case has been submitted to the Board for decision, the "final
authority" of the General Counsel is exhausted. Any action which
the Board may take thereafter does not constitute a review of the inde-
pendent portion of the General Counsel's authority. The Board may,
as heretofore, dismiss a complaint becaust it believes the legal theory
urged in support of the case inapplicable or that the factual allegations
of the complaint are unproved, or that the policy of the Act will not be
effectuated by entertaining jurisdiction. The power to dismiss a com-
plaint-whether for legal or policy reasons-is inherent in the Board's
very function of administering the Act. There is no more encroach-
ment on the General Counsel's original authority because the Board
ultimately dismisses a complaint for policy reasons, than when it
dismisses a complaint because the case has not been proved 15 Both the
Board and the General Counsel are supreme within their respective
statutory spheres: that of the General Counsel lies in investigating
and prosecuting complaint cases; that of the Board in deciding such
cases according to law and policy. The Board has neither desire nor
authority to trespass upon the domain of the General Counsel; but
neither may the General Counsel encroach upon the area continued to
be entrusted to the Board.
For all the reasons given herein, we reaffirm the finding made in a
A-1 Photo case, that the Board has discretionary authority under the
Act to dismiss a complaint for policy reasons, that the existence of such
discretion is not incompatible. with the statutory power of the General
Counsel to initiate proceedings by issuing complaints, and that that
discretion is properly exercised where, as in this case, we find that
interruption of the Employer's business operations -by a labor dispute
would have only a remote and insu))sta>>tial effect on commerce. We
shall therefore affirm the Trial Examh:er's order dismissing the
complaint.
ORDER
Upon the entire record in this case, and pt,:-suant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint against the
Waitresses and Cafeteria Women's Local No. 305, Waiters Local No.
Is Senator Taft said in his supplementary analysis of the conference bill ; "So far as
having unfettered discretion he [the General Counsel], of course, must respect the rules
of decision of the Board and of the courts." 93 Cong. Rec . 7000 ( June 12, 1947).
WAITRESSES AND CAFETERIA WOMEN'S LOCAL NO. 305 1171.
189, Bartenders, Card & Poolroom Workers Local No. 496, Cooks &
Assistants Local No. 207, Hotel Service Employees Local No. 664, and.
Local Joint Executive Board of H. & R. E. I. A. and B. I. L. of A.,
commonly known as Culinary Workers Alliance, each affiliated with
Hotel & Restaurant Employees and Bartenders International Union,,
AFL, be, and it hereby is, dismissed.