Alameda Glass & Mirror Co.

National Labor Relations Board - Board Decisions

Jun 17, 1975

218 N.L.R.B. 557 (N.L.R.B. 1975)

ALAMEDA GLASS & MIRROR COMPANY 557
Alameda Glass & Mirror Company and Glaziers and
Glassworkers Union Local 1621, International
Brotherhood of Painters & Allied Trades, AFL,-
CIO. Case 20-CA-9492
June 17, 1975
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On March 10, 1975, Administrative Law Judge
James T. Rasbury issued the attached Decision in
this proceeding. Thereafter, the General Counsel and
the Charging Party filed exceptions and supporting
briefs, and Respondent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings," and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety.
I We agree with the Administrative Law Judge that the glass replace-
merit which Respondent performs for its insured customers is retail in
nature. However, the record discloses that Respondent has performed some
nonretail work for local stores, businesses, and the State Division of
Highways. "[W ]here an employer ... operates both a retail and a nonretail
enterprise, and the nonretail aspect of the employer's operations is clearly
not de mmimrs, the Board will ordinarily apply nonretail standards in
determining whether to assert jurisdiction where neither enterprise alone has
sufficient commerce on which to assert jurisdiction" Appliance Supply
Company, 127 NLRB 319, 320 (1960) In the instant case, the record
provides no evidence with respect to Respondent's nonretail operations,
other than a description that it is "not .. a substantial amount." Since' we
cannot determine that "the nonretail aspect of the employer's operations is
clearly not de mmtmis," we agree 'with the Administrative Law Judge's
conclusion that our retail standard for determining whether to assert
jurisdiction applies. Administering that standard, we find that Respondent
does not meet the required $500,000 sales volume. Accordingly, it would not
effectuate the purposes of the Act for the Board to assert jurisdiction in this
matter, and we shall therefore order that the complaint be dismissed in its
entirety.
In view of our decision to dismiss the complaint on jurisdictional
grounds, we do not pass on the Administrative Law Judge's findings with
respect to the merits of the complaint.
DECISION
STATEMENT OF THE CASE
JAMES T. RASBURY, Administrative Law Judge : This case
was heard in San Jose, California , on December 10, 1974.1
The charge was filed by Glaziers and Glassworkers Union
Local 1621 (herein Union) on August 23. Complaint
alleged that Alameda Glass and Mirror Company (herein
Respondent) had failed to bargain with the Union and
thereby violated Section 8(aX5) of the National Labor
Relations Act, as amended (herein Act). Respondent did
not file a written answer until after the hearing, but
appeared at the hearing by counsel and answered on the
record.
The parties were given full opportunity to introduce
relevant evidence, examine and cross-examine witnesses,
and to submit briefs.
The pleadings, the evidence , and the briefs raise the
following:
Issues
1. Should General Counsel's motion for summary
judgment be granted?
2. Will the Board assert jurisdiction over the Respon-
dent? This will be resolved by a determination of whether
Respondent is to be considered a retail enterprise,
nonretail, or mixed-
3. If the merits of the dispute are to be considered, were
Respondent and the Union parties to a valid contract? If
so, did Respondent wrongfully refuse and fail to provide
information and/or abide by the contract?
Upon the entire record, including the pleadings (or lack
of pleadings) and my observation of the demeanor of the
witnesses, I hereby resolve the issues herein as follows:
I. MOTION FOR SUMMARY JUDGMENT
The charge in this case was filed on August 23. On
August 26 the Regional Director advised Respondent by
certified letter of the charge, the name of the investigative
agent, and the telephone number where he could be
reached. On November 1, some 60 days later, the
complaint was served on Respondent by, certified mail to
which was attached a copy of the Board's standard
procedures in unfair labor practice 'cases. The last
i All dates hereinafter will be in the year 1974 unless otherwise indicated.
218 NLRB No. 89
558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
paragraph 'of'the complaint plainly set forth that, unless an
answer was filed within 10 days, the allegations of the
complaint would be deemed true and could be so found 'by
the Board.
The counsel for General Counsel represented that on
approximately November 13 Mr. Gingench advised that he
had been retained by Respondent. On November 27 the
counsel for General Counsel advised Mr. Gingench that air
answer had been due on November 11 and, unless received
forthwith, she would move for summaryjudgment. On the
same date, November 27, Mr. Gingench requested, a 10-
day extension to file an answer. On November 29, the
request for extension of time to file an answer was denied.
The matter was set for hearing on December 10 without
an answer ever having been filed and without counsel for
General Counsel moving the Board for summary judg-
ment.
Why a motion for summaryjudgment was not fled with
the Board as provided for in Section 102.24 of the Board's
Rules and Regulations' was never explained. At the
hearing, counsel for General Counsel stated: "I've been
instructed to defer making a motion with respect to
summary judgment prior to receiving Respondent's re-
sponse concerning whether or not the allegations in the
complaint had been admitted."
At the hearing, I deferred ruling on the motion for
summary judgment made at the hearing and stated to the
parties that, as all parties ,were present and ready, it seemed
most expeditious and equitable to all concerned to go
forward with the presentation of the evidence. '
General Counsel's motion for summary judgment made
at the hearing is hereby denied because, under all the
circumstances, I feel that it was made untimely, and even
though Respondent's counsel was careless in failing' to
promptly file an answer,2 justice will not be served by
denying Respondent a right to be heard after the
Government, through its own failure to follow established
procedure, has been put to considerable expense and loss
of productive ` time in transporting the counsel, the
witnesses, the reporter, and the Administrative Law Judge
to the hearing site. 'The motion for summary judgment
should have been filed with the Board as provided for in
Section 102.24 of the Board's Rules and Regulations and
Statement of Procedure.
11. JURISDICTION
The testimony and pleadings indicate that Respondent is
a California corporation with - one location in San Jose,
California, involved in replacing broken glass in automo-
biles, homes, and stores. Its gross sales for fiscal 1973 were
$325,000. Approximately $217,000 of that sum was paid to
it by three insurance companies - State Farm Insurance,
Farmers Insurance Group, and California State Automo-
bile Association.
The Board has asserted jurisdiction over each of the
three insurance companies by virtue of the established
$500,000 retail standard .3 There was no testimony to prove
that any of the materials used by Respondent are shipped
directly in interstate commerce. The Respondent had
answered "yes" to the General Counsel's commerce
questionnaire in response to the question "Did your
purchases equal or exceed $50,000 for firms which, in turn,
purchased those goods directly from outside the state?"
Four firms were then listed with varying dollar amounts
totalling $92,000. The testimony indicated the Respondent
performed all work directly for the ultimate consumer, but,
when supplied with a release from the insured, would bill
the insurance carrier and provide them the release.4 In
other instances, the insurance company mailed the check
directly to the insured and the insured thensettled directly
with Respondent. The charge for the services rendered is
the same regardless of who pays the invoice. Frequently,
insurance agents referred customers to Respondent. How-
ever, there was no obligation to do so. Respondent does
not engage in any new construction work, but is only
involved in replacement. Question: Under these facts,
should Respondent be considered retail, nonretail, or
mixed?
The General Counsel argues that Respondent derived
two-thirds of its revenue from sales and services from
businesses rather than a purchaser who desired to "satisfy
his personal warrants or those of his family." General
Counsel then argues that, because Respondent provides
goods and services valued in excess of $50,000 to each of
the insurance companies over whom the Board has
previously asserted jurisdiction, Respondent meets the
Board's indirect outflow standards for the assertion of
jurisdiction, citing Siemons Mailing Service, 122 NLRB 81
(1958).
General Counsel's argument is logical, except that it
assumes the fact at issue. The 'critical fact relates to
whether Respondent's business is services rendered to, and
on behalf of, the ultimate consumer, or whether its sales
and services are rendered to, and on behalf of, the
insurance companies.
I disagree with the General Counsel's argument and am
of the opinion that the Board will not assert jurisdiction
under the facts of this case, because the Respondent is
clearly a retail enterprise and does not meet the required
$500,000 annual sales volume. Unlike the facts of Bob's
Ambulance Service, 178 NLRB 1 (1969), there is no proof
that Respondent's services are rendered at the behest of a
commercial establishment. The work is done at the request
of, and for, the ultimate consumer. The insurance compa-
nies merely become agents of the individual customers for
the purpose of making payment. If the Board were to assert
jurisdiction in this case, it would soon be inundated with a
flood of cases involving every "mom and pop" store that
does any substantial amount of business with credit card
patrons. Surely neither Congress nor the Board ever
intended such an intrusion into purely local affairs. The
mere fact that a large commercial establishment - i.e.,
Bank of America, American Express, an insurance compa-
2 Respondent counsel's postheanng answer consisted of two one- Farmers Insurance Company, 209 NLRB 1163 (1974); California State Auto
sentence paragraphs that were entirely adequate and could have been Association, 181 NLRB 797 (1970).
prepared and filed in the same or less length of time than it took to write a 4 There was some insignificant amount of "new" business indicated that
letter requesting an extension of time to file an answer. might be regarded as "non-retail." I have regarded this as de minimis.
3 State Farm Mutual Auto Insurance Company, 195 NLRB 871 (1972); Yakima Cascade Fuel Co, et a1 126 NLRB 1316 (1960).
ALAMEDA GLASS & MIRROR COMPANY 559
ny, etc. - pays the customer's invoice does not destroy the
fact that the sales and services are being rendered for a
purchaser who "desires to satisfy his personal wants or
those of his family and friends." J.S. Latta and Son, 114
NLRB 1248 (1955).5 The instant case seems much more
analogous to a credit card situation rather than a situation
of the Respondent dealing directly with the commercial
establishment, as was the case in Bob's Ambulance Service,
supra.6 In each instance of Board law that my research has
uncovered, there has been a direct contact or relationship
between the Company (Respondent) and a large commer-
cial establishment or a governmental agency whose
operations are of sufficient magnitude to justify asserting
jurisdiction. In this dispute, the evidence does not reveal
that required direct relationship between Respondent and
the insurance companies. I shall recommend that the
Board not assert jurisdiction in this case.
and after Lipsey had advised that he was not going to sign
the Temporary Working Agreement - picketing occurred
at Respondent's place of business. On July 17, 1973, a
meeting took place, attended by Lipsey and his attorney,
Ron Trapin of Quality Glass whose business was also
being picketed, William J. Brown, the business manager
and financial secretary of the Union, and the Union's
attorney, David Leahy. Brown testified as follows:
Q. There were two matters being discussed. Is that
a correct summarization?
A. Yes.
Q. One, getting the pickets off the shop; and the
second, asking the Union to bargain with United Glass
Dealers' Association separate from the other multi-
employers group?
A. Yes.
III. THE ALLEGED UNFAIR LABOR PRACTICE?
A. The Facts
Respondent has been an independent signatory to the
Union's contract with a multiemployer association, Glass
Management Association, for several years. The most
recent contract, prior to this dispute, expired June 30, 1973.
(See letter dated April 18, 1973, from Union to Association
members and independent employers. G.C. Exh. 12.)
As early as October 1972, Respondent's president,
Donald Lipsey, sought to form a new association -
United Glass Dealers' Association - comprised of
employers involved only in replacement work. Basically
Lipsey, at least, felt the glass replacement employers had
problems peculiar to their own businesses which were
sufficiently different from the new construction employers
to warrant a different contract than that negotiated by the
Glass Management Association. The Dealers' Association
contacted the Union but was advised that the then current
contract would not expire until June 30, 1973, thus no
negotiations were possible (see Resp. Exh. 1). In May 1973,
the Dealers' Association submitted a form of notice to the
Union from 16 owner-operators of replacement glass
shops, indicating their desire to be bound by any contract
negotiated by the Dealers' Association (see Resp. Exh. 2).
On June 11, 1973, the Dealers' Association was still trying
to get the Union to negotiate a contract (see Resp. Exh. 3).
On June 19, 1973, the Union apparently anticipated a
strike and mailed to the individual employers a "Temp-
orary Working Agreement" which would serve to avoid
strike problems if the employer signed the agreement (see
Resp. Exh. 4). This Temporary Working Agreement also
served to bind the employer to whatever final settlement
was agreed to between the Union and the Glass Manage-
ment Association.
Respondent refused to sign the Temporary Working
Agreement. On July 2, 1973, the first strike action occurred
although only two Glass Management Association mem-
bers were picketed that day. However, within a week -
5 See Roland Electrical Company v Walling, 326 U.S. 657, for a further
discussion of when merchandise and services are wholesale and when they
are retail.
6 Cf. Lang Towing Inc., 201 NLRB 629 (1973), and cases cited therein
On July 20, 1973, the Union, by its attorney, David
Leahy, advised Respondent's attorney by letter, inter alia:
"As soon as the present strike is concluded, the Union
would be willing to meet again for the purpose of
discussing recognition and in the event recognition is
granted, at that time, the Union will also be willing to
explore an agreement which reflects such recognition."
Following receipt of this letter, on July 23, Respondent
signed the Temporary Working Agreement with the words:
"This agreement is subject to letter from Glaziers, Local
1621, dated July 20, 1973" inserted above the signature of
Respondent's president (see G.C. Exh. 3).
While these events were taking place, the Union and the
Glass Management Association reached agreement on July
21, and the union membership ratified the agreement on
July 23.
Everything that has been related up to this point is
background to resolve the basic question as to whether or
not Respondent is bound by the terms of the contract
finally agreed to by Glass Management Association and
the Union covering the period from July 1, 1973, to June
30, 1976.
On November 23, 1973, the Union, by letter, pointed up
a violation of the contract on the part of the Respondent
(see G.C. Exh. 6). Later a demand was made to audit the
payroll records as permitted by article 18, section D,
subparagraph (ii) (G.C. Exhs. 7, 8, and 9). Admittedly,
Respondent has failed and is failing to supply necessary
and needed information to administer the 1973-76 contract
and thus would be in violation of Section 8(a)(5) and (1) of
the Act, if it be determined that Respondent is a party to
the aforementioned contract (see G.C. Exh. 10).
B. Analysis
In my opinion, Respondent is not now, nor has it ever
been, a party to the 1973-76 contract between Glass
Management Association and the Union. In the first place,
the conversation at the July 17 meeting between Respon-
dent and the Union, when coupled with the last paragraph
7 The Board may choose to disagree with my recommendation
concerning jurisdiction and for that reason it seems advisable to set forth a
decision on the merits.
560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the Union's July 20 letter, is sufficiently confusing (or
ambiguous depending on how you wish to express it) to
instill into the minds of a reasonably prudent person that
something more (negotiations) would take place just as
soon as it could be arranged. There was never a meeting of
the minds on the terms and conditions of a contract, and I
so find. Moreover, there is a second reason why the
Temporary Working Agreement dated July 23, 1973, could
not be construed as a valid contract. The terms of the
Temporary Working Agreement were prepared and for-
warded to Respondent with the signature of William J.
Brown already affixed. Thereafter, Respondent added the
words: "This agreement'is subject to letter from Glaziers,
Local 1621, dated July 20, 1973." The addition of the
above-quoted sentence created a qualified acceptance, or
in effect a new proposal, and thus required an acceptance
by the Union which was never done.8
CONCLUSIONS OF LAW
1. Respondent, Alameda Glass and Mirror Company,
is a retail enterprise whose annual dollar volume of
business does not meet the heretofore required amount in
order for the Board to assert jurisdiction.
2. The Union is a labor organization within the
meaning of the Act.
3. Regardless of whether the Board considers the
Respondent as a retail enterprise, wholesale, or mixed, the
evidence fails to prove that Respondent was ever a party to
the 1973-76 contract involving the Glass Management
Association or the Union and thus cannot be guilty of
having violated any of its terms or otherwise refused to
bargain with the Charging Party.
[Recommended Order for dismissal omitted from publi-
cation.]
8 See "Restatement of the Law of Contracts," secs. 58, 59, and 60.