Wilson Automotive Repair, Inc.

National Labor Relations Board - Board Decisions

Oct 28, 1969

179 N.L.R.B. 412 (N.L.R.B. 1969)

412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wilson Automotive Repair , Inc. and International
Association of Machinists and Aerospace Workers,
AFL-CIO. Case 23-CA-3108
October 28, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
JENKINS AND ZAGORIA
On March 19, 1969, Trial Examiner Laurence A.
Knapp issued his Decision in the above-entitled
proceeding, finding that the Respondent's operations
do not satisfy the National Labor Relations Board's
applicable discretionary standards for the assertion
of jurisdiction, and recommending that the
complaint be dismissed, as set forth in the attached
Trial Examiner's Decision Thereafter, the General
Counsel filed exceptions to the Trial Examiner's
Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
Board has delegated its powers in connection with
this case to a three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner
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 Trial Examiner, and
orders that the complaint herein be, and it hereby is,
dismissed.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
LAURENCE A. KNAPP, Trial Examiner I heard this case
at Houston, Texas, on November 25-27, 1968, following
prehearing procedures in compliance with the National
Labor Relations Act, as amended (herein called the Act).'
Following the hearing, counsel for the General Counsel
and for Respondent submitted briefs which I have
considered.
Upon the record in the case I make the following
findings of fact and conclusions of law
The underlying charge was served on Respondent by registered mail on
August 16, 1968, the complaint issued on October 28, 1968, and
Respondent filed its answer to the complaint on November 7, 1968
Amendments to the complaint and answer were allowed at the hearing
FINDINGS OF FACT
I. JURISDICTIONAL FINDINGS
Respondent Wilson Automotive Repair, Inc., is a Texas
corporation engaged at two locations in Houston, Texas,
in the sale and servicing of automotive transmissions. It is
a licensee of Aamco Transmissions, Inc , a corporation
chartered and headquartered in Pennsylvania Respondent
operates primarily as a retail enterprise, that is, the bulk
of its business is performed for individual automobile
owners, but some of its income is derived from nonretail
sales and services In the case of such a combination
enterprise, the Board will assert jurisdiction if either its
retail or nonretail jurisdiction standard is met, except that
it will not seek to apply the nonretail standards if the
amount of nonretail business is de minimts Respondent
contends that the Board's retail standard is not met and
that its volume of nonretail business is de minimts, and
that, therefore, the case should be dismissed Respondent's
contentions are supported by the evidence
In its fiscal year ending August 31, 1968, the period
utilized by the parties for the purposes of jurisdictional
facts, Respondent's gross volume of business was
$453,900 00, less than the $500,000 volume prescribed by
the Board as the minimum for assertion of jurisdiction
over Respondent as a retail enterprise As to its nonretail
operations, the record contains a list of the amounts
Respondent billed to named nonindividuals (mainly
commercial firms in Houston) The total of such billings
is $7,354.81, but of this total Respondent offered evidence
on the basis of which I find that items totaling $2,360 98
represented instances in which, while the charges were
billed to or in the name of some commercial firm or other
type of enterprise, the true customers were individual
automobile owners 2 Since in my view these instances
should be considered retail business, Respondent's total
volume of nonretail business was $4,993.83. Because this
amount is but slightly in excess of l percent of
Respondent's total business, it falls within the de minimis
category of cases in which the Board will not seek to
apply its nonretail standards to combination retail and
nonretail enterprises. Yakima Cascade Fuel Co , 126
NLRB 1316, 1317 ' And under the Yakima decision the
result would be the same were all of Respondent's billings
in the names of nonindividuals considered for that reason
alone to be nonretail business, since the $7,354 81 would
still represent less than 2 percent of Respondent's total
business and, in addition, is inherently a relatively
insignificant amount of business.'
'Falling in this category are the billings to Houston Lead Co , Mobile
Oil Co (for holders of Mobile Oil Co credit cards), Stainless Products
Co , Starr Steel Supply, Highland Insurance Co , Denison Copier Co ,
Houston Paper Co , Heights State Bank, and Weingarten's
'Compare Cemetery Service Corporation, 149 NLRB 604, 605-606, and
cases there cited at fn 5, p 606
It further appears that even if the Board's nonretail jurisdiction
standards were applicable, they would not be met on the facts of this case
These standards require an annual interstate outflow or inflow of at least
$50,000 There is no contention that any such outflow exists As to inflow,
Respondent in the year in question received directly from non-Texas
sources parts and equipment having a value of $29,896 15 ($28,109 76 from
Aamco Transmissions, Inc , and $1,786 39 from a firm identified in the
record as Parco ) Respondent also purchased and received from sources in
Texas (identified in the record as Allied Distributing Company, Al Parker
Buick Company, Bill McDavid Oldsmobile Company, and Tenneco) some
quantity of goods and materials which those suppliers, in turn, received
directly from non-Texas sources On the record I have the exact amount of
this "indirect inflow" cannot be determined But of the total of $5,682 17
179 NLRB No. 29
WILSON AUTOMOTIVE REPAIR, INC.
I Respondent is
meaning of the Act
requirements of the
the Board.
2 Accordingly,
dismissed
CONCLUSIONS OF LAW
engaged in commerce within the
but its operations do not meet the
applicable jurisdiction standards of
the complaint herein should be
worth of materials Respondent obtained from Allied Distributing
Company, 75 percent consisted of items rebuilt in Texas Deducting the
value of these locally rebuilt items from the $10,287 02 worth of all items
which Respondent obtains from these parts ' sources leaves a maximum of
$6,025 41 to be added to the $29,896 15 previously described Finally,
Respondent paid to two local advertising agencies about $47,500 in the
year in question The General Counsel seems to assume that this entire
amount should be considered "direct inflow " because it included the value
of advertising copy, film, etc supplied by Respondent 's franchiser, Aamco
413
Upon the foregoing findings and conclusions and upon
the entire record in the case it is recommended that the
Board issue the following
ORDER
The complaint herein is hereby dismissed
Transmissions, Inc , from without Texas But Respondent established that
what Respondent paid out covered the commissions due to the local
advertising agencies as well as the charges of the local advertising media
(apparently largely local television and radio stations ) and counsel for the
General Counsel made no attempt to establish what portion of the $47,500
represents the value of the interstate inflow of advertising services provided
by Aamco upon which he relies Hence , with the burden of proof on the
General Counsel, the entire $47,500 must be disregarded What is left is an
interstate direct and indirect inflow totalling about $36,000 00, less than
the $50 ,000 minimum required by the Board ' s nonretail standards