Wholesale & Warehouse Workers Union

National Labor Relations Board - Board Decisions

May 11, 1950

89 N.L.R.B. 1276 (N.L.R.B. 1950)

In the Matter Of WHOLESALE & WAREHOUSE WORKERS UNION, LOCAL
65, RESPONDENT and BERNARD HYMOWITZ , AN INDIVIDUAL D/B/A
BEST HOUSEKEEPING CO., EMPLOYER-PETITIONER
Case No; 2-CC-118.-Decided May 11, 1950
DECISION
AND
ORDER REMANDING CASE TO TRIAL EXAMINER
On January 30, 1950, Trial Examiner Horace A. Ruckel issued an
order granting the motion of Local 65, Wholesale & Warehouse
Workers Union, Respondent, to dismiss the complaint in the above-
entitled proceedings upon the ground that the operations of the
Employer, while not wholly unrelated to commerce, are essentially
local in character and that the assertion of jurisdiction in this, cause
would not effectuate the policies of the National Labor Relations
Act.. Thereafter, the General Counsel filed his Request for Review,
alleging that the Trial Examiner erroneously concluded that the Em-
ployer's business operations are essentially local in character, and
that his action in dismissing the complaint herein was erroneous
upon the facts and as a matter of law.
The Board has considered the order of the Trial Examiner dis-
missing the complaint on the grounds noted above. Upon the entire
record in this case the Board finds merit in the General Counsel's
allegation that the action of the Trial Examiner dismissing the
complaint was erroneous.
The record reveals that the Employer operates two stores in New
York City, selling, at both wholesale and retail, gas ranges , refrig-
erators, television and radio sets, and other household appliances.
During the year 1948, the Employer purchased such appliances in
the amount of approximately $650,000, of which 80 percent was
shipped to the Employer from points outside'the State of New York.
During the same period, the, Employer made sales of such appliances
amounting to more than $700,000, of which 12 percent was sold and
shipped to customers outside the State of New York. During the
first 6 months of 1949, the Employer made purchases amounting to
89- NLRB No. 147.
1276
WHOLESALE & WAREHOUSE' WORKERS UNION, LOCAL 65 1277
$272,000, of which 80 percent was shipped to the Employer from
points outside the State, and it made sales amounting to $341,000,
of which 2.5 percent were sales and shipments to points outside the
State. In the great majority of the out-of-State purchases, the Em-
ployer ordered such appliances from distributors located in New
York City, but the shipments were from points out of the State, made
directly to New York warehouses for the Employer. In some in-
stances, the Employer holds franchises from out-of-State manufac-
turers authorizing the Employer to sell the product within the terri-
tory of New York.' The Employer's wholesale operations constitute
a substantial portion of its business.2
On these facts we do not agree with the Trial Examiner that the
Employer's business is essentially local in character and that it would
not effectuate the policies of the Act for the Board to assert juris-
diction. On the contrary, and upon the entire record in this case,
we find that the Employer is engaged in commerce within the meaning
of Section 2 (6) and (7) of the Act, and that it would effectuate the
policies of the Act to assert jurisdiction for the purpose of resolving
the substantive issues raised by the complaint and the issuance of an
appropriate order with respect thereto.3
ORDER
IT IS HEREBY ORDERED that the order dismissing the complaint made
herein by the Trial Examiner be, and it hereby is, reversed, and
IT IS FURTHER ORDERED that the above-entitled proceeding be, and
it hereby is, remanded to the Trial Examiner for the purpose of
preparing and issuing an Intermediate Report, setting forth his find-
ings of fact, conclusions of law, and recommendations with respect
to the unfair labor practices alleged in the complaint herein.
MEMBER STYLES took no part in the consideration of the above
Decision and Order Remanding Case to Trial Examiner.
' The record indicates that the Employer holds franchises for the sale of household
and electrical appliances manufactured by Maytag Company, Radio Corporation of America,
Caloric Stove Company, Bendix Company , General Electric Company , Crosley , Inc., and the
Emerson Co . A few of these franchises are dealer contracts obtained directly from manu-
facturers . Others are contracts executed by corporations which serve as distributors of
the manufacturer ' s product.
2 Of the $ 705,100 in sales made during the year 1948, those to points out-of-State
amounted to $75 , 200 wholesale , and $10,300 retail ; those made intra-State amounted to
$275,700 wholesale and $344 , 500 retail . Of the $ 341,999 in sales for the first 6 months
of 1949 , those to points out-of - State amounted to $2,123 wholesale and $7,196 retail;
those made intra - State amounted to $89 , 120 wholesale and $243 , 599 retail.
3 Cf. Johns Brothers, Inc., et al ., 84 NLRB 294 ; Riesmeyer Motors Company, 88 NLRB
No. 152 ; William F. Crome Co., 80 NLRB 986 ; Dixie Wholesale Company, Inc., 73 NLRB
1203.