Wilson-Oldsmobile

National Labor Relations Board - Board Decisions

Oct 26, 1954

110 N.L.R.B. 534 (N.L.R.B. 1954)

534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
b. Chains of retail stores, with stores in more than 1 State, only if
(1) the individual store involved meets either of the tests for intra-
state stores, or (2) the chain has gross annual sales totalling $10,000,-
000 or more. Jurisdiction would not be exercised over public restau-
rants regardless of source and volume of materials and regardless of
whether the restaurant is part of a multistate chain. With regard to
this new category, I would in general adhere to the 1950 plan as to
the retail stores and public restaurants.
WILLIAM T. WILSON AND MABEL J. WILSON, A PARTNERSHIP , D/B/A
WILSON-OLDSMOBILE and LOCAL 985, INTERNATIONAL UNION, UNITED
AUTOMOBILE , AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF
AMERICA, UAW-CIO , PETITIONER . Case No. 7-RC-?445. October
26, 1954
Decision and Order
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Emil C. Farkas, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The labor organization involved claims to represent certain em-
ployees of the Employer.
2. No question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act, for the following
reasons:
At the hearing the Employer 1 moved to dismiss the petition on the
ground that its operations do not affect commerce within the meaning
of the Act and on the further ground that in any event it would not
effectuate the purposes of the Act for the Board to exercise its jurisdic-
tion over this operation.' The Petitioner opposed the motion, and the
hearing officer referred it to the Board for decision.
The facts relative to the Employer's business are not in dispute.
Wilson-Oldsmobile, a partnership, sells and services motor vehicles.
Its sole place of business is located in Detroit, Michigan. In 1953, its
purchases of new automobiles, parts, accessories, gas, etc., were valued
in excess of $1,300,000, all of which were purchased and received di-
i The Employer's name appeals in the caption as amended at the hearing.
2At the hearing the Employer further moved to dismiss the instant petition on the
grounds (1) that the hearing was not an open hearing to which the public had free access,
and (2 ) that the petition and notice of hearing improperly list the Employer's name as
Wilson-Oldsmobile , Inc., and that the Employer is not properly before the Board We
find it unnecessary to discuss these contentions because of our disposition of the question
of jurisdiction
110 NLRB No. 74.
WILSON-OLDSMOBILE 535
rectly from points within the State of Michigan. All of the Employ-
er's sales were made within the State. The sale of new automobiles,
which is the major portion of the Employer's business, is carried out
under the terms of a franchise agreement with the Oldsmobile division
of General Motors Corporation. This contract is comparable to the
usual automobile dealer agreement in the auto industry in that it re-
quires the employer to adhere to detailed rules in merchandising, pric-
ing, and servicing the new automobiles which it sells. It is clear, none-
theless, that Wilson-Oldsmobile is an independent commercial ven-
ture, in which the Employer's capital is invested and to which attaches
the usual profit and loss element and exclusive responsibility over the
hiring and control of all the employees.
It has been the consistent position of the Board that it better effec-
tuates the purposes of the Act, and promotes the prompt handling of
major cases, not to exercise its jurisdiction to the fullest extent possi-
ble under the authority delegated to it by Congress, but to limit that
exercise to enterprises whose operations have, or at which labor dis-
putes would have, a pronounced impact upon the flow of interstate
commerce. In furtherance of that policy, the Board in October 1950
adopted certain standards to govern its assertion of jurisdiction.
Those standards resulted from a study of the Board's experience up to
that time.
Among the standards adopted in 1950 was the franchise yardstick,
which required the Board to exercise its jurisdiction automatically
over certain types of local businesses (principally automobile dealers
and soft drink distributors) irrespective of their size or their possible
effect upon interstate commerce.' However, at the time that it ex-
tended its processes to automobile dealers and soft drink distributors
on the basis of the franchise yardstick, the Board declined to assert
jurisdiction over distributors in other fields despite their franchise ar-
rangements with manufacturers or wholesalers 4
Early this year the Board undertook to study and reappraise the
1950 jurisdictional standards in the light of the Board's experience
since their adoption and also in the light of changing economic condi-
tions. Based upon that study and reappraisal it is our opinion that the
franchise standard established as a part of that plan should be revised
in order to better attain the Board's long-established policy of limit-
ing the exercise of its jurisdiction to enterprises whose operations have,
or at which labor disputes would have, a pronounced impact upon the
flow of interstate commerce.
3Baate, Bros., 91 NLRB 1480; Seven Up Bottling Company of Miami, Inc, 92 NLRB
1622
4P R. McDowell, 100 NLRB 770; Lamco Electric, 92 NLRB 191 ; Reiley's Stores, Inc.,
96 NLRB 516.
536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, we have determined that in future cases the Board will
no longer use the "franchise yardstick" for purposes of asserting juris-
diction over automobile dealers or over distributors, wholesale or retail,
in any other industry. We have further determined that where, as in
the instant case, a local retail establishment has a franchise agreement
-with a multistate enterprise the Board will apply the same jurisdic-
tional standards as are applied to other local retail establishments 5
In our recent decision in Hogue and Knott Supermarkets 8 we stated
that we would not assert jurisdiction over such an establishment unless
it has direct out-of-State purchases of at least 1 million dollars per
annum or indirect out-of-State purchases of at least 2 million dollars
per annum or direct out-of-State sales of at least $100,000 per annum.
Since the Employer's operations do not meet any one'of these stand-
ards, we shall dismiss the instant petition?
[The Board dismissed the petition.]
MEMBER PETERSON, concurring :
I agree that we should not assert jurisdiction over this employer,
who has no direct or indirect out-of-State purchases or sales, solely
because he has a franchise from the Oldsmobile division of General
Motors.
A year ago, Member Houston and I, as a majority of a panel, with
Chairman Farmer dissenting, asserted jurisdiction over a similar
though smaller enterprise on the ground that it was "an essential ele-
ment in a Nation-wide system of automobile manufacture and distri-
bution." 8 Later, the Supreme Court in a different case sustained that
view as a matter of law, saying "the Board was justified in finding"
that an automobile franchise dealer's "repeated unfair labor practices
tended to lead to disputes burdening or obstructing commerce among
the States." 9 While the Court upheld the legality of our action, I
doubt that the opinion can be taken as underwriting its abiding
wisdom.
In the Klinka's Garage case, Mr. Houston and I noted that of course
the Board, in the exercise of what Chairman Farmer aptly termed a
"matter of administrative self-restraint," could revise its yardsticks.
But we stated, and I think rightly so, that we should alter our juris-
dictional policy to exclude that type of employer "only as part of an
over-all examination of our jurisdictional standards." That has now
s To the extent that Baxter Bros., 91 NLRB 1480, Seven Up Bottling Co. of Miami, Inc.,
92 NLRB 1622, and cases relying thereon are inconsistent with our decision herein, those
cases are overruled.
110 NLRB 543.
See also, the majority decision in Breeding Transfer Co., 110 NLRB 493.
e Klinka's Garage, 106 NLRB 969.
° Howell Chevrolet Co. v. N. L. R. B., 346 U. S. 482 ; see also N. L. R. B. v. Bill Daniels,
Inc., 346 U. S. 918.
WILSON-OLDSMOBILE 537
been done, and I join, as part of that general reappraisal, in abandon-
ing the franchise yardstick as the sole determinant of whether juris-
diction should be asserted.
Perhaps a word is in order about the likely impact of the recision
here made, and why I do not altogether agree that the majority's new
yardstick is in all respects correct.
Member Murdock refers to the fact that "retail franchised automo-
bile dealers employ more than 520,000 workers and do more than
$16,000,000,000 of business a year." That is so, but I would point out
that the very same source shows there were some 40,000 retail fran-
chised automobile dealers in the country in 1948, and the average
dealer has only about 13 employees.10 Indeed, it is common knowledge
that a substantial number have fewer than 10 workers. I doubt that
we can say that by asserting jurisdiction over these enterprises only if
they meet the minimum standards applicable to retail stores and other
enterprises generally, we have taken a step which may lead to such a
rash of unfair labor practices as to bring the interstate transactions of
a great industry "to a complete standstill." 11
As I have stated elsewhere'12 I do not agree with the majority's mone-
tary standards. The 1950 plan required $500,000 in direct inflow and
$1,000,000,000 in indirect inflow. The majority now double these fig-
ures, but only as to retail establishments. While there would appear to
be logic in maintaining a consistent ratio between direct and indirect
inflow and outflow, the majority have departed therefrom by differen-
tiating between retail and nonretail enterprises. Moreover, the ma-
jority have added the further qualification, applicable only to retail
establishments: jurisdiction will be asserted if the store annually
ships $100,000 worth of goods outside the State (by contrast , nonretail
establishments come under the new plan if they ship out of State
$50,000 or more annually). I fail to perceive the reason or logic in this
additional requirement, and therefore would not adopt it. To me,
there is no clear-cut line between retail and wholesale, for we all know
that many businesses are mixed retail and wholesale. What is more,
to the extent that the monetary volume of the inflow or outflow is the
critical factor, the impact on commerce, generally speaking, is not in-
creased or lessened by the type of business involved.
10 Statistical Abstract of the United States, 1953, p. 854.
11 Our staff study analyzed the effect of various proposals on the 413 cases pending
before us on May 1, 1954. This sample represents approximately 18 percent of the
Board's average annual output of cases, and in its distribution closely parallels that of
previous years. Of these 413 cases , 21 involved franchise dealers-7 In the dairy or soft
drink business and 14 automobile dealers. Applying the majority's criteria here, 2 auto-
mobile dealer cases would be processed , 13 would definitely be dismissed , and 6 are doubt-
ful because of insufficient commerce data. At most, therefore, about 5 percent of our
annual case output is affected. To my mind , having regard for the nature of the busi-
ness, this can scarcely be labelled catastrophic.
12 See my separate opinion in Breeding Transfer, 110 NLRB 493.
538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
If I and my colleagues in the majority are wrong in our appraisal
of the impact of our action on the Nation's economy, I for one am pre-
pared to admit my error and correct it. Do not say the lines we now
draw are not susceptible of change if change is needed. To borrow
a phrase from the late Justice Cardozo, the inn that we think gives
adequate shelter for the night is not the journey's end; we must and
do recognize that the law here, like the weary traveler, needs to be
ready for the morrow.
MEMBER MURDOCK, dissenting :
I cannot accept the decision of my colleagues in this case. The
instant decision reflects and effectuates the announcement by the
Board majority, by press releases dated July 1 and 15, that they would
no longer assert jurisdiction over franchised dealers who comprise in-
tegral units of nationwide distributing systems.
In my dissenting opinion in the Breeding Transfer 13 case, I stated
the broad and basic objections which I find to the new jurisdictional
standards taken as a whole, as conflicting with the Act and the Board's
legal responsibilities thereunder, involving the exercise of legislative
power to reallocate authority between the Federal Government and
the States, and without justification in budgetary or other adminis-
trative necessities. I shall not reiterate those objections herein except
to note that they apply in full to the specific recision of jurisdiction
accomplished by this decision. The new standard laid down in the
instant case, however, illustrates simply and clearly how great a de-
viation these standards are from the legal and policy considerations
which should govern this Board in the exercise of its jurisdiction.
This Employer sells and services motor vehicles in Detroit, Michi-
gan. During the past year its purchases alone amounted to more
than $1,300,000. Its sales during the same period amounted, of
course, to an appreciably greater sum. The Emloyer, as a retail car
dealer, is one unit in a nationwide distributing system through which
all sales are made of this particular brand of automobile. The sys-
tem is controlled by General Motors, the manufacturer of Oldsmobiles,
for which the Employer acts as a sales outlet; the control being ex-
ercised through a franchise system whereby the manufacturer de-
termines the merchandising, pricing, servicing, and advertising
methods to be used by this Employer and the rest of the units in the
system. The manufacturer is completely dependent upon these deal-
ers for the sale of its product. The retail dealer, in turn, is dependent
upon the manufacturer for the continuation of the franchise, and,
through that, its entire business. The public is dependent upon both
for its source of new cars.
13 Supra
WILSON -OLDSMOBILE 539
The majority decision holds that the policies of the Act are best
effectuated by no longer asserting jurisdiction over employers op-
erating under such franchises. The only basis for that conclusion
advanced by the majority is a vague and generalized reference to a
supposed lack of "pronounced" impact upon commerce stemming from
labor disputes in such enterprises. But the grounds for this finding,
if it may be termed that, are either lost, strayed, or stolen. Indeed,
no attention other than a passing comment to the effect that these are
"independent commercial ventures," is paid by the majority decision
to the essential role that these retail franchised outlets play in the
manufacture and distribution of automobiles. It is important to
examine the majority conclusion in some detail, for, as will appear
hereinafter, it is directly and uncompromisingly in conflict with the
facts and with the findings of the Board and the courts in the past.
The position of the majority seems to be that these franchised deal-
ers are but local retail enterprises with practically no individual effect
upon commerce. Even if this assertion were necessarily true, how-
ever, it does not settle the jurisdictional question. Precisely this point
was considered by the Tenth Circuit Court, which held : 14
The fact that these [franchised auto] dealers are only one of many
and that the repercussions of a work stoppage in their business
would have relatively little impact on the total flow of the manu-
facturers' interstate activities is not fatal to jurisdiction. "Ap-
propriate for judgment is the fact that the immediate situation
is representative of many others throughout the country, the total
incidence of which if left unchecked may well become far reach-
ing in its harm to commerce." [Emphasis supplied.]
Just how far reaching that "total incidence" could be is illustrated by
the statistics which I set forth in the Breeding Transfer decision. Re-
tail franchised automobile dealers employ more than 520,000 workers
and do more than $16,000,000,000 of business a year.15 It was with
this in mind that the Tenth Circuit Court went on to conclude: is
To deny jurisdiction of the Board would allow thousands of re-
tailers of new automobiles to engage in unfair labor practices
with impunity. The "total incidence" of such unfair labor prac-
tices if left unchecked would not only substantially interfere with
the free flow of commerce, but would conceivably bring to a com-
plete standstill the interstate transactions of one of the Nation's
greatest industries. [Emphasis supplied.]
14 N L R B v Conover Motor Co, 192 F 2d 779 at 781.
15 Statistical Abstract of the United States 1953, U. S Department of Commerce, Bureau
of the Census, p 854 The figures cited are for the year 1948 and may reasonably be
expected to have increased since then
10 N L R B v. Conover Motor Co , supra.
540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Member Peterson, in his separate concurrence, deprecates the find-
ings of the circuit court. I find nothing, however, in either the ma-
jority or concurring opinion, which alters or effectively refutes the
factual findings and the legal reasoning upon which that opinion was
based. Other judicial bodies, including the Supreme Court, as quoted
hereinafter, sustain those findings and reasoning. If, indeed, the
courts have not "underwritten the abiding wisdom" of past Board
rulings in this field, they have nevertheless sustained and not reversed
them, and their conclusions as recited herein seem to me to require
more than a happy phrase in refutation. The concurring opinion also
waves aside the statistics previously mentioned on the dual grounds
that the average number of workers per shop is small and the num-
ber of cases to be dismissed under the new standard would be insig-
nificant. The fact that these franchised dealers employ an average
of 13 employees each, however, is in no way an indication that they
can or should do without the protection of the Act. Indeed, as I
noted in my Breeding Transfer opinion, the Congress which enacted
the National Labor Relations Act specifically rejected a limitation
of jurisdiction which would have excluded employers with less than
10 employees. Moreover, even the new standards of the majority do
not presume to pose such a test. But such an approach completely
misses the point; which is that it is not 13 employees of a single em-
ployer who are involved in this standard but some 520,000 workers
in a few integrated systems. And while Member Peterson does not
view the dismissal of cases involving these employees as "cata-
strophic" because they constitute only 5 percent of our case output,
the fact that $16,000,000,000 of goods in commerce and over half a
million employees will be excluded almost entirely from our jurisdic-
tion, in my opinion, might well rate that adjective. But it seems pat-
ent that whether or not individual Board Members rate a declination
of jurisdiction as catastrophic or not is hardly controlling. The Con-
gress has charged this Agency and its Members with the protection
of the free flow of commerce and we cannot cancel that legislative
determination simply by our own individual and undocumented view
of what should be protected.
The basic fallacy, therefore, in the approach of the majority to the
question of jurisdiction herein, is in the fact that my colleagues persist
in viewing the operations of the individual dealer apart from the na-
tionwide distributive system of which those dealers are essential units.
The majority takes the position that the same jurisdictional standards
must be applied to them as to any "local retail establishment"; in other
words, that only the inflow and outflow of the individual dealer may
be considered in determining the impact on commerce of unfair labor
practices committed by or among the dealer's employees. They dis-
miss the franchise arrangement as one not disturbing the independ-
WILSON-OLDSMOBILE 541
ence of the individual dealer as a separate commercial venture, and of
no significance in linking him as an integral part of a nationwide dis-
tribution system.
This position, of course, has been repeatedly rejected by the Board
prior to this day 17 The contention of the majority that the individual
dealer constitutes an "independent commercial venture" not requiring
the assertion of our jurisdiction did, at one time, receive support from
a decision of the Sixth Circuit Court of Appeals 18 That decision and
that position, however, was thereafter completely rejected by the
Supreme Court, which held, in accord with the Board and a majority
of the circuit courts, that such retail franchised dealers form "an in-
tegral part of a national system of distribution of new cars." 19
As the courts and the past decisions of the Board have found, the
relationship between the dealer and the manufacturer is a close and
integrated one involving interdependent operations. The franchised
dealers are an integral part of a nationwide sales program in which
substantial control over merchandising, prices, service facilities, and
advertising, among other things, is retained and exercised by the
manufacturer. In affirming the assertion of jurisdiction over such
dealers, the Supreme Court observed that : 20
The [franchise] agreement required Howell [the retailer dealer]
to make varied and detailed reports about his business affairs, to
devote full time to Chevrolet sales, to keep his sales facilities at a
location and conduct the business in a manner that satisfied Gen-
eral Motors, to permit General Motors to inspect Howell's books,
accounts, facilities, stocks, and accessories and to keep such uni-
form accounting systems as General Motors might prescribe.
Many other terms of the agency agreement also emphasized the
17A. E. Rogers Co, et at., 103 NLRB 1274 ; Bishop, McCormick & Bishop, 102 NLRB
1101; Louis Rose Company, 99 NLRB 690 ; California Willys, 98 NLRB 325 ; Howell
Chevrolet Company, 95 NLRB 410; Harbor Chevrolet Company, 93 NLRB 1326 ; Conover
Motor Company, 93 NLRB 867 ; Baxter Bros ., 91 NLRB 1480 . With minor exceptions this
was also true prior to the adoption of the 1950 jurisdictional plan. See Sheeley Motor
Sales Co , 89 NLRB 1376; University Motors, 89 NLRB 1224 ; Howell Chevrolet Co., 89
NLRB 1189 ; Bill Heath, Inc, 89 NLRB 67; Masters Pontiac Company, Inc., 88 NLRB
932; Bill Daniels, Inc, 88 NLRB 572; Riesmeyer Motor Company, 88 NLRB 814; Grace
Motor Sales, Inc, 88 NLRB 428; Allbritton Motors, Inc , 87 NLRB 193 , Reslink and
Wiggei s Motors, 87 NLRB 126; L. C Beauchamp, 87 NLRB 23; Harry Brown Motor Com-
pany, 86 NLRB 652 ; Angelus Chevrolet Co., 88 NLRB 929; Bellingham Automobile
Dealers Association, 90 NLRB 374 ; Nash San Diego, Inc, 90 NLRB 86; Jos. W. Fournier,
Rome Lincoln-Mercury Corp, 86 NLRB 397; Granger Motor Company, 86 NLRB 336;
Butte Motors, 85 NLRB 1336, B B. Burns Co, Inc, 85 NLRB 1025; Wm. J Silva Com-
pany, 85 NLRB 573; Lundahl Motors, Inc, 85 NLRB 224; Channel Motors, et al., 84
NLRB 353; Scott Motor Company, et al, 84 NLRB 129; Kalliani. Chevrolet Company, 82
NLRB 978; M. L. Towsend, 81 NLRB 739; Harrys Cadillac-Pontiac Company, 81 NLRB
1; Midtown Motors, et al, 80 NLRB 1679; Adams Motors, Inc., 80 NLRB 1518; J. C.
Lewis Motor Company, Inc, 80 NLRB 1134; Lewiston Buick Company, 77 NLRB 375;
Puritan Chevrolet, Inc., 76 NLRB 1243; Liddon White Truck Company, Inc ., 76 NLRB
1181 ; Newton Chevrolet, Inc., 37 NLRB 334.
'I N. L. R B v. Bill Daniels, Inc., 202 F 2d 579 (C. A. 6 ), reversed 346 U. S. 918.
19 N. L R B v . Howell Chevrolet Co, 346 U. S. 482.
20 N. L. R B. v. Howell Chevrolet Co., supra.
542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
interdependence of Howell's local and General Motors' national
activities. [Emphasis supplied.]
Accordingly, it is clear that the franchises bind the retail dealer into
a "vast national network of an integrated distribution system which
affects commerce" by shaping the individual dealer's activity into a
"pattern which is found throughout the nation." 21
It is clear that the integrated system wrought by the franchise
method in the new car, soft drink, beer, and other industries does not
occur in all industries where franchises are used. As the majority has
noted, the Board, since 1950, has dismissed petitions among such re-
tail groups as electrical appliance dealers upon a finding that the
franchises used and the nature of the industry did not present the
integrated system which we have here. I fail to see, however, how
these illustrations of the Board's care, in the past, in exercising juris-
diction upon the franchise principle in any way deprecates rather
than affirms the truth and weight of what I have set forth herein. The
majority decision assumes so, only because it persists, unlike the pre-
vious Board, in treating all franchises alike without consideration of
the presence of consolidated integrated control and operation where
such exists.
Nor does the fact that this particular Employer is located in the
same state as the manufacturer rather than in a different state make
any essential difference. The Supreme Court has ruled upon this
precise situation and has rejected such a'distinction.22
In summation, the Board is not deciding this problem de novo. We
have examined this question over a number of years in a great number
of cases. The findings of those cases as affirmed by the courts add up
to the consistent conclusion that the assertion of jurisdiction over re-
tail franchised dealers such as the Employer herein, was necessary to
effectuate the policies of the Act. That conclusion has been accepted
and affirmed by the highest tribunal in the Nation. The decision of the
majority is, accordingly, not only in conflict in with administrative
findings and experience of the Board in recent years, but relies upon
the specific grounds rejected by the Supreme Court. The effect of this
decision will be a considerable one. We are not dealing here with a
few scattered "corner stores" but with a 16 billion dollar industry with
hundreds of thousands of employees. Relatively few of the indi-
vidual units of that integrated industry will be able to meet the
jurisdictional standards for ordinary retail stores, henceforth most
21 N L R. B. v. Ken Rose Motors, Ine , 193 F 2d 769 (C. A 1) N L R B v Bonier-
ville Buick. Ine, 194 F. 2d 56 (C A 1) , N T R 1? v Ray Brooks. 204 F 2d 899 (C A 9) ;
N L R B v. Conover Motor Co, 192 F 2d 779 (C A 10) ; N L R B v Davis Motors,
Jac, 192 F 2d 782 (C A 10).
22 N L R B v. Bill Daniels , Inc, supra . Although I had earlier shared the contrary
view of the Court of Appeals for the Sixth Circuit, the judgment of the Supreme Court
definitely settles the question.
HOGUE AND KNOTT SUPERMARKETS 543
will not receive the protections and restraints of the Act.23 In the
face of all this, I cannot, as does the majority, decline to assert jurisdic-
tion. To do so, in the words of the court, quoted above, is to "allow
thousands of retailers of new automobiles to engage in unfair labor
practices" which, unchecked, can "bring to a complete standstill the
interstate transactions of one of the Nation's greatest industries."
"See the dissenting opinion in Hogue and Knott Supermarkets, supra, as to the diffi-
culty of any of these franchised dealers, among others, meeting the extreme new standards
now required for local retail establishments whether or not they are franchised dealers.
J. R. KNOTT AND HUGH H. HOGLTE D/B /A ROGUE AND KNOTT SUPER-
MARKETS and RETAIL CLERKS INTERNATIONAL ASSOCIATION, LOCAL
1529, AFL, PETITIONER . Case No. 32-RC-758. October 26, 1954
Decision and Order
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before John E. Cienki, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds:
1. The Employer,' a partnership, operates two supermarkets in
Memphis, Tennessee, under the name of Hogue and Knott Super-
markets. The Petitioner seeks to represent the employees of both
stores in a single unit. The Employer moves to dismiss on the grounds
that it would not effectuate the policies of the Act for the Board to
assert jurisdiction in this case. For the reasons set forth below, we
grant the Employer's motion.
All the Employer's sales are made locally at its stores on a cash-
and-carry basis. The Employer's total annual purchases are valued
at approximately $2,360,000, of which about $224,000 represents ship-
ments to the Employer directly from out-of-State, and not more than
$1,250,000 represents shipments to the Employer indirectly from out-
of-State.' The record does not reflect the inflow figures for the sepa-
rate stores.
It has been the consistent position of the Board that it better
effectuates the purposes of the Act, and promotes the prompt handling
of major cases, not to exercise its jurisdiction to the fullest extent
1 The Employer's name appears in the caption as amended to conform with the evi-
dence adduced at the hearing.
IIncluded in this class of purchases are goods valued at approximately $300,000 which
the Employer characterized as local because they were twice removed from interstate com-
merce. We find it unnecessary to decide whether these goods should be considered as part
of local purchases or as indirect inflow inasmuch as under the jurisdictional standards set
forth herein, the result would be unaffected by such a determination.
110 NLRB No. 68.