Kwik Kafe of Idaho

National Labor Relations Board - Board Decisions

Nov 25, 1970

186 N.L.R.B. 830 (N.L.R.B. 1970)

830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kwik Vend, Inc. d/b/a Kwik Kafe of Idaho and
General Teamsters, Chauffeurs, Warehousemen
and Helpers Union Local No. 483, International
Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America. Case
19-CA-4520
November 25, 1970
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On July 1, 1970, Trial Examiner James R. Heming-
way issued his Decision in the above-entitled proceed-
ing, finding that it would not effectuate the purposes
of the National Labor Relations Act to assert
jurisdiction over Respondent's operations. Accord-
ingly, as set forth in the attached Trial Examiner's
Decision, the Trial Examiner recommended that the
complaint be dismissed. Thereafter General Counsel
filed exceptions to the Trial Examiner's Decision with
a supporting brief, and Respondent filed a brief in
opposition to the General Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations 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, briefs, and the
entire record in this proceeding, and hereby adopts
the findings, conclusions, and recommendations of
the Trial Examiner.
ORDER
It is hereby ordered that the complaint herein be,
and it hereby is, dismissed.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES R. HEMINGWAY, Trial Examiner: Upon a charge
filed on September 25, 1969, by the above-named labor
organization, herein called the Union, a complaint issued
on January 9, 1970, alleging a violation of Section 8(a)(1)
and (3) of the National Labor Relations Act, as amended,
29 U.S.C. Sec. 151, et seq., herein called the Act. On
January 26, 1970, the Acting Regional Director for Region
19 issued an amendment to the complaint striking the name
of one alleged discriminatee therefrom. The Respondent
' See Carolina Supplies and Cement Co., 122 NLRB 88; Jackson's Party
Service, 126 NLRB 875.
filed an answer dated January 26, 1970, denying any
violation of the Act. The date of filing of this answer does
not appear in the record. In its answer the Respondent also
contends that it is not engaged in commerce within the
meaning of the Act.
On April 22, 1970, the Respondent filed a motion
to dismiss for lack of jurisdiction. However, in the
grounds set forth in the motion, the Respondent indicates
that the reason for its motion is not lack of jurisdiction, but
rather that the Respondent does not come within the
standards established by the Board on the basis of which
the Board will assert jurisdiction. On the same date, the
Regional Director referred the Respondent's motion to a
Trial Examiner for ruling. By telegraphic notice, on April
24, 1970, the Trial Examiner deferred ruling on the motion
until the opening of the hearing, at which time he was to
hear oral argument. On that same date, the General
Counsel mailed an opposition to the Respondent's motion
to dismiss, which opposition was recieved by the Trial
Examiner on April 27.
The hearing was opened on May 5, 1970, at Boise, Idaho.
At the opening of the hearing, the parties stipulated to
additional facts not covered by the complaint specifically,
and the General Counsel stated his intention to move to
amend the complaint by adding allegations of commerce.
Such motion to amend was later made and the motion was
granted over opposition. After hearing oral argument on
the Respondent's motion to dismiss, the Trial Examiner
reserved ruling thereon and, although he thought that
probably Respondent's motion would be granted, he
permitted the parties to introduce evidence bearing on the
merits of the case so as to avoid a reopening in the event
that the decision was adverse to the Respondent on the
jurisdictional issue.
Upon the basis of the complaint, answer, motion of the
Respondent, opposition by the General Counsel, and oral
argument heard at the hearing, I make the following:
FINDINGS OF FACT
1. THE FACTS OF COMMERCE
A. The Contentions of the Parties
Respondent contends that it is a retailer of goods and
that, under the Board's jurisdictional standards, the Board
would not here assert jurisdiction because Respondent's
interstate operations do not reach the Board's minimum
standard and because its gross sales do not reach the sum of
$500,000 as required by the Board before it will assert
jurisdiction.' The General Counsel concedes that Respon-
dent is a retail enterprise and that its business does not meet
the Board's jurisdictional standards for retail enterprises,
but he contends that this case falls under the exception
recognized by the Board in cases where a respondent's
business has a substantial impact upon national defense of
the United States.2
2 See Ready Mix Concrete & Materials, Inc, 122 NLRB 318.
186 NLRB No. 122
KWIK KAFE OF IDAHO 831
B. The Respondent's Business
Respondent is an Idaho corporation engaged at Boise,
Idaho, in retail sales and distribution of food products and
related merchandise through vending machines. The
complaint alleges and purchased answer admits that,
during the calendar year 1969, "Respondent purchases
goods valued in excess of $50,000 from local firms which, in
turn, had purchased those goods from suppliers located
outside the state of Idaho." This suffices to establish the
Board's legal jurisdiction.3
Respondent's gross sales during 1969, as alleged in the
complaint and admitted in the answer, exceeded $200,0004
of which sum more than $10,000 was derived from vending
machines located at the Veterans Administration Hospital
in Boise, Idaho, where Respondent was the sole operator of
vending machines.
At the hearing the General Counsel moved to amend the
complaint by adding an allegation that during the same
period of time, Respondent derived income of more than
$18,000 from vending machines located at the United
States Post Office located at 770 South 17th Street, Boise,
Idaho. The motion was granted. The Respondent then
moved to amend its answer to deny the added allegation,
and that motion was likewise granted. However, the parties
jointly introduced in evidence a contract dated November
1, 1967, between Respondent and Employees' Welfare
Committee of the United States Post Office, Boise, Idaho,
for the installation and operation of certain vending
machines in the named Post Office, and the parties
stipulated that the gross amount derived from such contract
was approximately $18,000 a year.
The General Counsel argues that, together, these
amounts, $10,000 to patients and employees of a Veterans
Administration hospital, and $18,000 to postal employees,
satisfy the Board's national defense jurisdictional standard.
At this time, the Board has set no dollar figure in making an
exception to the minimum amount established in the field
of retail trade for asserting discretionary jurisdiction. The
only guideline for the exception is that the trade must have
a substantial impact upon national defense.
The Board has not defined the terms "substantial
impact" or "national defense" with sufficient precision to
permit predetermination of the issue with any degree of
certainty. It has preferred to consider each case on an ad
hoc basis. From cases heretofore decided, I infer that the
words "national defense" imply not merely defense of the
borders of the nation but also national war efforts wherever
military action or aid is located and wherever the efforts are
exerted. From the words "substantial impact" I deduce that
the Board is concerned primarily with the effect of a strike
which might seriously impede the manufacture or supply of
war materiel or other necessary supplies or impede the
movement, equipment, or maintenance of troops, at home
or abroad. Conceivably, the words "national defense"
would be elastic enough to cover other phases of the
national defense, but, so far, examples beyond the
foregoing are scarce.
The General Counsel emphasizes the fact that Respon-
dent is the sole supplier of vending machine services at the
Veterans Administration Hospital , but the exclusiveness of
this service must be viewed in relation to its comparative
value . Respondent has six vending machines at the Boise
Veterans Administration Hospital , five in one building and
a sixth in another . The five consist of a candy machine,
coffee and hot chocolate machine , cold drink machine,
sandwich machine, and an ice cream machine . The sole
machine in another building is a candy machine located in
a recreation hall. The items dispensed by these machines
are available to ambulatory patients , hospital personnel,
and, presumably , visitors . Two additional sources of food
exist at the hospital premises . The Veterans Canteen
Service operates a cafeteria and general store , and the
hospital itself operates its own kitchen for dispensing meals
to patients . The Veterans Canteen Service 's restaurant is
available for use of ambulatory patients and guests. The
vending machines of Respondent supplement these two
other sources of food and drink . Other vending machine
businesses exist in Boise , Idaho , but only the Respondent
has machines at the Veterans Administration Hospital.
The General Counsel argues that:
... the care and treatment of American service
veterans in V.A. hospitals , and the delivery of mails are
essential to national defense . And just as clearly,
optimum operation of these services essential to the
national defense depends in part upon the spiritual and
physical sustenance offered by Respondent's vending
machines.
I am not convinced that Respondent 's vending machines
contribute in any degree to the spiritual sustenance of
patients and I find only a minimal contribution from those
machines to the physical sustenance of patients or staff.
No evidence was offered as to the proportion of mail
passing through the U.S. Post Office at Boise that is
destined to servicemen or national defense industries. In
the absence of such a showing, I am unable to infer that the
handling of the mail at that Post Office has a substantial
impact upon national defense . Although the sale of
sandwiches and drinks at a Veterans Administration
hospital may have a more direct and discernible relation to
national defense than do the operations of the U.S. Post
Office in Boise , I conclude that Respondent 's business
acitivities have no substantial impact upon national
defense . While I do not mean to say that the sale of food to
a branch of the armed services could not have a substantial
impact upon national defense,5 I find that Respondent's
sales of foodstuffs are not only in relatively small amounts
but they are not even a substantial part of the sales of food
dispensed at the Veterans Administration Hospital ; so that
hospital would not be materially inconvenienced by a strike
of Respondent's employees.
Cases may be found where sales apparently had a more
direct effect upon national defense than those here involved
but, because of the relatively small value of the sales in
3 Normandy Square Food Basket, Inc, 163 N LRB 369, 371 Cf Willard's income tax return showing gross sales of $293,724 03
Shop Rite Markets, Inc, 128 NLRB 710. 5 See Johnnie W Miller Sandwich Co, 95 NLRB 463, Colonial Catering
4 Respondent attached to its motion to dismiss a copy of its 1969 Company, 137 NLRB 1607
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
those cases , the Board nevertheless declined to assert impact upon the national defense and that the Board
jurisdictions The dollar amounts of sales in those cases should not assert jurisdiction in this case.
were in some instances more than in the instant case.
On the evidence as a whole , I conclude and find that the RECOMMENDED ORDER
Respondent 's activities and sales do not have a substantial
It is recommended that the complaint herein be
dismissed.
6 Hesperia Liquid Gas Company, 165 NLRB 756: Ben Patrick d/b/a Company, 107 NLRB 915.
Wesiside Pattern Works, 150 NLRB 1730 , Alpine Mill and Lumber