General Stores, Inc.

National Labor Relations Board - Board Decisions

Dec 9, 1963

145 N.L.R.B. 316 (N.L.R.B. 1963)

316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the National Labor Relations Act preempts the jurisdiction of the
circuit court.
2. The Employer, an Illinois corporation, is in the retail business
and conducts a restaurant, cocktail lounge, and supper club known as
Imperial Nest at 103d Street and Cicero Avenue, Oak Lawn, Illinois.
3. The Employer's total gross sales are less than $300,000 annually
and are largely founded on the offering of musical entertainment per-
formed by members of the Union. In its statement of position, the
Union does not affirmatively offer or assert any countervailing allega-
tions as to the Employer's commerce data and volume of business but
requests a hearing which has been denied. Under these circumstances,
we rely upon the jurisdictional facts alleged herein by the Employer.
4. There have been no findings made by the circuit court respecting
the aforesaid commerce data.
5. No representation or unfair labor practice proceeding involving
the same labor dispute is pending before the Board.
On the basis of the above, the Board is of the opinion that :
1. The Employer is a retail enterprise engaged in the operation of
a restaurant, cocktail lounge, and supper club in Oak Lawn, Illinois.'
2. The Board's current standard for asserting jurisdiction over re-
tail enterprises within its statutory jurisdiction is an annual gross
volume of business of at least $500,000. Carolina Supplies and Ce-
ment Co., 122 NLRB 88, 89. The Employer's annual gross volume of
business of less than $300,000 does not meet the retail standard for the
assertion of jurisdiction by the Board.
Accordingly, the parties are advised, under Section 102.103 of the
Board's Rules and Regulations, Series 8, as amended, that the Board
would not assert jurisdiction over the Employer because the allega-
tions submitted herein do not establish that the Employer's operations
meet the Board's standard for asserting jurisdiction over retail
enterprises.
2 Thunderbird Hotel, Inc and. Joe Wells, et al, Co-Partners, d/h/a Thunderbird Hotel
Company, 144 NLRB 84; Colonial Catering Company, 137 NLRB 1607, 1608.
General Stores, Inc., Petitioner and Retail Clerks International
Association , Local 1439, AFL-CIO , Union . Case No. 19-RM-
432. ' December 9, 1963'
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Hearing Officer John N.
145 NLRB No. 38.
GENERAL STORES, INC. 317
Zimmerman. The Hearing Officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Leedom and Fanning].
Upon the entire record in this case, the Board finds :
1. General Stores, Inc., is a Washington corporation having two
retail variety stores in Spokane, Washington. During the calendar
year of 1962, the Employer-Petitioner purchased goods with a value
in excess of $50,000 from points outside the State of Washington; and
received gross revenue from sales in excess of $500,000. On these
facts, we find that the Employer is engaged in commerce within the
meaning of the Act and it will effectuate the policies of the Act to
assert jurisdiction herein.
2. Retail Clerks International Association, Local 1439, AFL-CIO,
is a labor organization within the meaning of the Act.
3. 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:
On November 26, 1962, the Employer filed the petition herein alleg-
ing that the Union was then engaged in picketing the Employer with
a purpose of organization or recognition. The Union had in fact
made a demand for recognition in July 1962 and had maintained
that demand until November 6, 1962, when it notified the Employer
it was disclaiming any interest in representing a majority of the Em-
ployer's employees. The Union had, in conjunction with its demand,
picketed the Employer with signs alleging that the Employer had
refused to bargain. This picketing ceased on or before November 6.
On November 13, 1962, the Employer's RM petition filed in Case
No. 19-RM-421, was dismissed. On November 23, the Union resumed
picketing, but with signs which read :
Please do not Patronize General Surplus Stores. For Informa-
tion Only. General Stores are Non-Union. Retail Clerks In-
ternational Association, Local 1439, AFL-CIO.
This picketing ceased in February 1963 and has not been resumed.
The Employer contends that the Union's subsequent picketing was
inconsistent with its disclaimer of November 6, and constituted a con-
tinuation of its demand for recognition. The Union, on the other
hand, asserts that the subsequent picketing was informational only
in character, not inconsistent with its disclaimer, and that therefore
no question concerning representation exists.
318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
No express demand for recognition was made by the Union after the
November 6 disclaimer was sent to the Employer. At the hearing,
however, Vernon Humphries, a concessionaire who had rented and
operated a pony ring in front of the Employer's store during 5 days
in December 1962, testified that the pickets told him in the course
of several conversations that the picketing would cease when the em-
ployer signed a contract -with the Union. The pickets, who were not
members of the Union, denied having made such statements. They
further testified that they had been told by the union officials that
the object of the picketing was "for information only." Other evidence
adduced at the hearing discloses that the Union, at a time contem-
poraneous with its disclaimer, notified another 'labor organization that
it had established a picket line at the Employer's store "for the pur-
pose of a consumer boycott only." And in the notification given the
other labor organization, the Union further stated that the picket line
was not intended to interfere with service to the store.
On the basis of the preponderance of the foregoing evidence we
are persuaded, and find, that the subsequent picketing by the Union
was not inconsistent with its disclaimer of November 6, 1962. What-
ever the conclusion derived from the conflicting evidence as to the
objective of the picketing, the picketing ceased in February 1963, a
month before the hearing, and at the hearing the Union again dis-
claimed interest in representing the Employer's employees. In these
circumstances we cannot conclude that there is a claim for present
recognition sufficient to support the Employer's petition for an elec-
tion herein.'
[The Board dismissed the petition.]
MEMBER LEEDOM, concurring :
I do not agree with my colleagues that the Union's picketing was
consistent with its disclaimer of November 6, 1962. However, in view
of the complete cessation of the picketing in February 1963, the
Union's subsequent disclaimer at the hearing in this case is, in my
opinion, unequivocal 2 Consequently, I concur in the dismissal of the
petition. I would, however, consistent with that well-established
Board practice, as illustrated in the Franklin Square case, supra, note
that the Board will entertain a motion requesting reinstatement of
this petition in the event the Union, within 6 months from the date
of this Order, engages in conduct inconsistent with its disclaimer.
' Mzratti's, Inc., 132 NLRB 699, 700-701 ; Andes Candies, Inc, 133 NLRB 758, 760.
2 See Ricard T. Baylis, et al. co -partners d/b/a Franklin Sgnma Lumber Co, 114
NLRB 519.