National Television Service

National Labor Relations Board - Board Decisions

Dec 9, 1952

101 N.L.R.B. 857 (N.L.R.B. 1952)

NATIONAL TELEVISION SERVICE 857
J. C. JUSTICE D/B/A NATIONAL TELEVISION SERVICE, SUCCESSOR TO NOBLE
F. DoYLE AND J. C. JUSTICE D/B/A DOYLE AND JUSTICE ' and
LOCAL UNION 1275, INTERNATIONAL BROTHERHOOD OF ELECTRICAL
WORKERS , AFL. Case No. 32-CA-2O4. December 9, 1952
Decision and Order
On May 21, 1952, Trial Examiner Charles W. Schneider issued his
Intermediate Report in the above-entitled matter, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that he cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief.
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 Herzog and Members Murdock and
Peterson].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds no prejudicial error was committed. The rul-
ings are hereby affirmed. The Board has considered the Intermediate
Report, the exceptions and brief, and the entire record in this case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner, with the following modifications.
The Respondent questions the propriety of assertion of jurisdiction
by the Board over his business operations. The Respondent admits the
allegations of violations of the Act which are contained in the com-
plaint herein. We adopt the Trial Examiner's conclusion that the
Respondent is engaged in commerce within the meaning of the Act
and that it would effectuate the policies of the Act to assert jurisdiction
over the Respondent's business operations. We adopt the finding of
the Trial Examiner which determines that the Respondent operates
a multi-state enterprise as the basis for our conclusion that the Re-
spondent's activities fall within our policies for assertion of jurisdic-
tion. Because this finding is sufficient to sustain the Board's assertion
of jurisdiction in this proceeding, we deem it unnecessary to rule upon
the Trial Examiner's findings relating to further criteria for as-
sertion of jurisdiction by the Board under our jurisdictional policy.
The Remedy
As recommended by the Trial Examiner, we shall order the Re-
spondent to offer reinstatement to those employees who went on
I As amended at the hearing.
101 NLRB No. 152.
858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
strike on July 25, 1951. However, the section of the Intermediate
Report entitled "The Remedy" is modified in this manner. We shall
order the Respondent to offer, upon their applications, to all of the
employees who went on strike on July 25, 1951, and who have not
already been so reinstated, immediate and full reinstatement to their
former or substantially equivalent positions, without prejudice to their
seniority and other rights and privileges. We shall order the Re-
spondent to dismiss, if necessary, any persons hired on or after July
25, 1951, to provide places for the returning strikers. If no positions
are available for such employees who may apply for reinstatement as
the result of the Employer's curtailment of his business operations
since July 25, 1951, we shall order the Respondent to place them
on a preferential employment list.
We shall also order the Respondent to make whole those employees
who went on strike on July 25, 1951, and who have not been reinstated
previously, for any loss of pay they may suffer by reason of the
Respondent's refusal to reinstate them, by payment to each of them of
a sum of money equal to that which he normally would earn as wages
during the period from 5 days after the date on which the individual
employee applies for reinstatement to the date of the Respondent's
offer of reinstatement, or placement upon a preferential employment
list, as the case may be. If the right to back pay shall accrue to any
of the said employees, it shall be computed in the manner hereinafter
provided.
We shall order that loss of pay be computed on the basis of each
separate calendar quarter or portion thereof during the period com-
mencing 5 days after the employees' applications for employment to
the date of the Respondent's proper offers of reinstatement. The
quarterly periods, hereinafter called quarters, shall begin with the
first day of January, April, July, and October. Loss of pay shall
be determined by deducting from a sum equal to that which these
employees would normally have earned for each such quarter or por-
tion thereof, their respective earnings, if any, in any other employment
during that period. Earnings in one particular quarter shall have no
effect upon the back-pay liability for any other quarter. We shall also
order the Respondent to make available to the Board, upon request,
payroll and other records to facilitate the checking of the amount of
back pay due.
Order
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, J. C. Justice d/b/a National
Television Service, Memphis, Tennessee, and West Memphis, Arkan-
sas, his agents, successors, and assigns, shall :
NATIONAL TELEVISION SERVICE 859
1. Cease and desist from :
(a) Refusing to bargain collectively with Local Union 1275, Inter-
national Brotherhood of Electrical Workers, AFL (hereinafter re-
ferred to as the Union), as the exclusive representative of all employees
in the following appropriate unit with respect to rates of pay, wages,
hours of employment, and other conditions of employment :
All radio and television technicians and stockmen located at his
plants in Memphis, Tennessee, and West Memphis, Arkansas, exclud-
ing all office and clerical employees, technical employees, professional
employees, refrigeration repairmen, watchmen, guards, and super-
visors as defined in the National Labor Relations Act.
(b) Interfering with, restraining, or coercing employees in the exer-
cise of rights guaranteed in Section 7 of the Act, by the following
conduct :
(1) Interrogating employees as to their union affiliations, activities,
or desires.
(2) Threatening to discharge employees because of their union
affiliations, activities, or desires.
(3) Threatening to discharge employees if the Union comes into
the Respondent's shop.
(4) Threatening to cease- operations before negotiating with the
Union or signing a contract with the Union.
(5) Instructing employees to drop their union activities, because
the Respondent cannot afford the Union.
(6) Threatening to "cause trouble" and to prevent striking em-
ployees from finding other jobs.
(7) Advising individual employees that civil and criminal charges
brought against them at the instigation of the Respondent will be
dropped if employees get out of the Union.
(8) Requesting individual employees who are on strike to forego
their strike and return to work for the Respondent.
(c) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of their right to self-organization,
to form labor organizations, to join or assist Local Union 1275, Inter-
national Brotherhood of Electrical Workers, AFL, or any other labor
organization, to bargain collectively through representatives of their
own choosing, to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or to refrain
from any or all such activities except to the extent that such rights
may be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in Section
8 (a) (3) of the Act.
2. Take the following affirmative action which it has found will
effectuate the policies of the Act :
860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Upon request, bargain collectively with Local Union 1275,
International Brotherhood of Electrical Workers, AFL , as the exclu-
sive representative of all employees in the aforseaid appropriate unit,
and embody any understanding reached in a written and signed
agreement.
(b) Upon application , reinstate and make whole those employees
who went on strike on July 25, 1951 , in the manner set forth in the
section of the Decision herein entitled "The Remedy."
(c) Post at his plants in Memphis , Tennessee , and West Memphis,
Arkansas, copies of the notice attached hereto and marked "Appendix
A." Copies of said notice , to be furnished by the Regional Director
for the Fifteenth Region, shall , after being duly signed by the
Respondent or his authorized representative , be posted by the Re-
spondent immediately upon receipt thereof, in conspicuous places,
including all places where notices to employees are customarily
posted.2 Reasonable steps shall be be taken by the Respondent to
insure that said notices are not altered , defaced, or covered by any
other material.
(d) Notify the Regional Director for the Fifteenth Region, in
writing, within ten (10 ) days from the date of this Order what steps
the Respondent has taken to comply herewith.
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, I hereby notify my employees that :
I WILL NOT interrogate employees with respect to, or threaten
to discharge them for, their union affiliations, activities or desires;
or threaten to cease operations before negotiating or signing a
contract with LOCAL UNION 1275, INTERNATIONAL BROTHERHOOD
OF ELECTRICAL WORKERS, AFL : or instruct employees to discon-
tinue their union activities; or threaten to cause trouble and pre-
vent striking employees from finding other jobs; or advise em-
ployees that civil or criminal charges against them brought by
me will be dropped if employees will resign from the above-named
Union; or request individual employees who are on strike to
forego their strike and return to work.
I WILL NOT in any like or related manner interfere with, restrain,
or coerce employees in the exercise of their right to self-organ-
'In the event this Order is enforced by a decree of the United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order" the words
"Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
NATIONAL TELEVISION SERVICE 861
ization, to form labor organizations, to join or assist LOCAL UNION
1275, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS,
AFL, or any other labor organization, to bargain collectively
through representatives of their own choosing, to engage in con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all such activi-
ties except to the extent that such rights may be affected by an
agreement requiring membership in a labor organization as a
condition of employment, as authorized in Section 8 (a) (3) of
the Act.
I WILL bargain collectively, upon request, with LOCAL UNION
1275, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS,
AFL, as the exclusive representative of all employees in the bar-
wining unit described below, with respect to rates of pay, wages,
hours of employment, and other conditions of employment, and
if an understanding is reached, embody such understanding in a
written and signed agreement. The bargaining unit is:
All radio and television technicians and stockmen located at
my plants in Memphis, Tennessee, and West Memphis, Arkan-
sas, excluding all ollice and clerical employees, technical em-
ployees, professional employees, refrigeration repairmen,
watchmen, guards and supervisors as defined in the National
Labor Relations Act.
I WILL, upon application, reinstate those employees who went on
strike on July 25, 1951, to their same or substantially equivalent
positions and make them whole as provided in the Decision and
Order.
All my employees are free to become or remain members of any
labor organization. I will not discriminate against any employee be-
cause of membership in or activity on behalf of any labor organization.
J. C. JUSTICE D/B/A NATIONAL
TELEVISION SERVICE,
Employer.
Dated ---------------- By ---------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Intermediate Report and Recommended Order
Upon charges duly filed by the above-captioned Union, the General Counsel of
the Board, by the Regional Director for the Fifteenth Region (New Orleans,
Louisiana), issued his complaint dated January 29, 1952, which , as amended,
charged the Respondent Company,' Memphis, Tennessee, with refusal to bargain,
I As amended at the bearing.
862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and interference, restraint, and coercion of employees in violation of Section
8 (a) (1) and (5) of the National Labor Relations Act, as amended, 61 Stat. 136.
Upon due notice and service a hearing was held at Memphis, Tennessee, on
February 11, 1952, before the undersigned Trial Examiner, upon the allegations
of the complaint, as amended. All parties were afforded opportunity to par-
ticipate in the hearing, to examine and cross-examine witnesses, to introduce
relevant and material evidence, to argue the issues, and to file briefs and proposed
findings. Briefs have been received from the General Counsel and the Respond-
ent, and duly considered.
The sole issue between the parties is whether the Respondent's business opera-
tions are in, or sufficiently affect, commerce as to warrant the Board in asserting
jurisdiction. Subject to his contention that the Board is without jurisdiction,
the Respondent admitted the allegations of violation contained in the complaint,
and the allegation that the Union is a labor organization.
Pursuant to a motion by the Respondent to dismiss, based on the commerce
ground, the Respondent and the General Counsel introduced evidence and a
stipulation on that issue. Ruling on the motion having been taken under advise-
ment at the hearing, it is now denied in accordance with the following findings
and conclusions.
THE COMMERCE ISSUE
The Respondent's position, disputed by the General Counsel, is that his busi-
ness operations are neither in nor sufficiently affect commerce as to warrant
the assumption of jurisdiction.
The Respondent is an individual doing business under the trade name of Na-
tional Television Service, having his principal office in Memphis, Tennessee,
and operating two stores or shops : one in Memphis, Tennessee, the other in
West Memphis, Arkansas. The Respondent is engaged in the purchase and
sale of parts for, and in the business of servicing, radios, television sets, ref rigera-
tion and air-conditioning equipment, and washing machines.
The city of Memphis lies on the east bank of the Mississippi River, which
separates the State of Tennessee from the State of Arkansas. Across the river
from Memphis, about 8 miles from the east or Tennessee bank, and apparently
within the trading area of Memphis, Tennessee, is the municipality of West
Memphis, Arkansas, a city, according to the 1950 census, of over 9,000 inhabi-
tants. The two areas are connected by the Memphis-Arkansas River Bridge,
carrying both vehicular and rail traffic. Eight miles south of the city of Mem-
phis is the Tennessee-Mississippi border, a portion of which area also appears
to be within the Memphis trading market.
The Respondent does not sell any nationally distributed electrical appliances.
His sole business is to install and service such appliances, either on behalf
of the seller (who may be either a dealer or a distributor) or on behalf of the
purchaser, or both. He is, however, an authorized service agency for a number
of nationally organized television and radio manufacturers, for such machines
as Hallicrafter, Sentinel, Phileo, Magnavox, Emerson, Motorola, and Dumont.
The status of being an authorized serviceman on any particular instrument
is conferred by the manufacturer of that instrument. The significance of the
status is that only such persons are permitted to service the machines during
the period the manufacturer's warranty is in effect. Servicing by an unau-
thorized mechanic may void the warranty, at the manufacturer's option. The
Respondent does no work for industrial concerns or public utilities. The instru-
ments he services are all either located in, or destined for, residences.
NATIONAL TELEVISION SERVICE 863
During the first half of 1951 the Respondent operated five stores or shops at
the following locations :
1393 South Bellvue, Memphis, Tennessee
3398 Macon Road, Memphis, Tennessee
4th & Monroe, Memphis, Tennessee
Poplar and Cleveland, Memphis, Tennessee
113 E. Broadway, West Memphis, Arkansas
All stores were separated by less than 15 miles.
The two shops located at 4th and Monroe, and at Poplar and Cleveland, were
known as Western Auto shops. Western Auto is a nationally established retail
hardware, automobile supplies, and appliance chain. These two shops of the
Respondent occupied space in the Western Auto stores, which the Respondent
leased from Western Auto at a rental of $1 per month per store, pursuant
to agreement under which the Respondent, apparently exclusively, did war-
ranty work on television sets and radios sold by Western. Under this agree-
ment Western charged a customer $10 at the time of purchase for labor during
the 90-day period of the manufacturer's warranty, which warranty covered
parts but not labor. This $10 was retained by Western. When a set needed
servicing while under warranty the Respondent did the work, charging Western
according to a schedule established by the agreement. In addition to this war-
ranty work, the Respondent also took in general service work at those two
locations. The equipment used in these two shops was owned by the Respondent.
The Respondent did not operate the Western shops throughout all of 1951,
however. In April or May of 1951 he moved out of those stores, but continued
to do work for Western and its customers until about September 1951. The
Respondent's West Memphis, Arkansas, shop was opened in April 1951 and is
still operating.
In July 1951 the charging Union called a strike of the Respondent's employees.
Due to resultant inability to staff it, the Respondent closed the shop on South
Bellvue. It reopened around November on a "cash and carry" basis and re-
mained open until early February 1952, when it again closed-whether per-
manently or temporarily is not clear. The West Memphis shop, however-
and presumably that at Macon Road also-remained open for and continued to
do business during the strike.
At the time of hearing, therefore, the Respondent was operating two shops :
the one on flacon Road in Memphis, Tennessee, and the one on East Broadway
in West Memphis, Arkansas. At the time of the strike the Respondent had 17
or 18 employees ; at the time of hearing he had 9 or 10.
During 1951, the Respondent's total earnings from services performed
amounted to $123,304.012
Since the West Memphis shop did not open until April 1951, income given for
that shop is only for the last 9 months of 1951. Similarly the figures for West-
ern Auto sales presumably are for the first 9 months of 1951. As to the Bellvue
shop, it has been noted that that was closed for some time after the strike.
2 The sum is drawn from the following income figures :
Macon Road shop---------------------------------------------- $55,091.03
Bellvue shop--------------------------------------------------- 44,103.69
West Memphis shop--------------------------------------------- 13, 311. 02
Western Auto shops -------------------------------------------- 10,798.27
123, 304. 01
The transcript of hearing incorrectly states that 1951 sales at the Macon Road shop were
$5,591.03. A letter to the Trial Examiner from counsel for the Respondent, dated May 1,
1952, states that that figure should be $55,091.03. The transcript is corrected accordingly.
864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
However these figures are projected, it is evident that whether local or inter-
state, the business is a substantial one.
Of the total amount of the above sales, $14,389.63 represented sales of service
to or at the instance of distributors or dealers of nationally distributed instru-
ments over whom the Board would assert jurisdiction.
During 1951 the Respondent's total purchases of parts for the instruments it
serviced amounted to $39,179.80. Of this amount, $2,413.10 was for the West
Memphis, Arkansas, store. All of these parts were purchased by the Respondent
in Memphis. All, however, were manufactured outside the State of Tennessee.
All parts are stored by the Respondent in a central stockroom in Memphis, from
which they are requisitioned by the individual shops. Thus, parts used in the
West Memphis, Arkansas, store move from outside Tennessee into Memphis,
and then on to Arkansas.
In order to ascertain whether the business is subject to the Act, it will be
necessary to determine the jurisdictional criteria, and to further break down the
sales and purchase data.
I
The statute reaches not only enterprises engaged in commerce but those whose
activities affect it. In N. L. R. B. v. Fainblatt, 306 U. S. 601, the Supreme Court
said : "It has been settled by repeated decisions of this Court that an employer
may be subject to the National Labor Relations Act although not himself engaged
in commerce."
And if the volume of commerce is substantial, it is immaterial that it is
relatively small:
Nor do we think it important, as respondents seem to argue, that the volume
of commerce here involved, though substantial, was relatively small as com-
pared with that in the cases arising under the National Labor Relations Act
which have hitherto engaged our attention. The power of Congress to regu-
late interstate commerce is plenary and extends to all such commerce be it
great or small. (Id.)
And, so long as the enterprise is affected, the effect upon commerce does not
become remote because the individual or entity whose activities are sought to be
restrained is not itself in commerce. N. L. R. B. v. Denver Bldg. Trades Council,
341 U. S. 675; I. B. E. W. v. N. L. R. B., 341 U. S. 694. Thus where the contractors
are located in the State of New York, and the affected enterprise is located in
Connecticut, the impact upon commerce is not remote merely because the enter-
prise is the construction of a private dwelling; nor the involvement de minimus
because the total value of the structure is only $15,200; and the value of" the
immediately involved subcontract only $325. I. B. E. W. v. N. L. R. B., supra.
II
In 1950 the Board announced the establishment of a policy for limitation of the
exercise of its legal jurisdiction to enterprises having a pronounced impact upon
interstate commerce; and set up certain standards by which the exercise of the
authority could be determined. In Hollow Tree Lumber Co., 91 NLRB 635, the
Board said :
The Board has long been of the opinion that it would better effectuate the
purposes of the Act, and promote the prompt handling of major cases, not
to exercise its jurisdiction to the fullest extent possible under the authority
delegated to it by Congress, but to limit that exercise to enterprises whose
operations have, or at which labor disputes would have, a pronounced impact
NATIONAL TELEVISION SERVICE 865
upon the flow of interstate commerce. The time has come, we believe, when
experience warrants the establishment and announcement of certain stand-
ards which will better clarify and define where the difficult line can best be
drawn.
And see Federal Dairy Co. Inc., 91 NLRB 638; Jamestown Builders Exchange,
93 NLRB 386; Fifteenth Annual Report pp. 5-7.
In the Hollow Tree and subsequent decisions the Board stated that it will
exercise jurisdiction over the following enterprises, among others:'
(1) Enterprises which annually sell goods or services valued at $25,000, or
more, out of State; Stanislaus Implement and Hardware Co., 91 NLRB 618.
(2) Enterprises which
. . . furnish goods or services necessary to the operations of other employers
engaged in commerce, without regard to other factors, where such goods or
services are valued at $50,000 per annum or more, and are sold to : (a) public
utilities or transit systems ; (b) companies which function as instrumen-
talities and channels of interstate and foreign commerce and their essential
links; or (c) enterprises engaged in producing or handling goods destined
for out-of-State shipment; or performing services outside the State, in the
value of $25,000 per annum or more. This standard reflects, in large measure,
the results reached in the Board's past decisions disposing of similar
jurisdiction issues.'
(3) Any enterprise which
(a) Secures directly from sources outside the State equipment or supplies
valued at $500,000 or more annually. Federal Dairy Co., Inc., 91 NLRB 638.
(b) Purchases from local distributors located within the State, material which
the distributors have received from sources outside the State, if such materials
amount in value to $1,000,000 or more annually. Dorn's House of Miracles, Inc.,
91 NLRB 632.
(c) By any combination of the outflow or inflow specified above, equals 100
percent. Rutledge Paper Products Co., 91 NLRB 625; The Sawyer Machine
Works, 93 NLRB 94; White Construction Co., 92 NLRB 53; MacFarlane's Candies,
91 NLRB 1264; General Seat Co., 93 NLRB 1511; Fifteenth Annual Report, p. 7.`
(4) Multistate enterprises, even though the entire product of the particular
facility involved is distributed locally. The Borden Company, Southern Divi-
eion, 91 NLRB 628.
Under some circumstances, the Board has declined, on the basis of statutory
construction, to exert jurisdiction over a particular type of enterprise, even
though application of the above-stated standards would normally have called
for the exertion of jurisdiction. See, for example, Hotel Association of St.
Louis, 92 NLRB 1388. The Board has, however, specifically asserted jurisdic-
tion over the business of television and radio and electrical appliance sales
and repairing. Dowd's Radio and Electric Company, 91 NLRB 640. While such
a decision does not necessarily imply that the Board would take jurisdiction
' Other criteria, illustrated by such decisions as TV'BSR, INC., 91 NLRB 630; and W. C.
King, d/b/a Local Transit Lines, 91 NLRB 623 , are not relevant here and are consequently
not averted to. For a complete statement of the policy see Fifteenth Annual Report,
pp. 5-7.
' Hollow Tree Lumber Co., supra.
5 For example: Sales to points outside the State, $10,000 or 40 percent of (1) above;
intrastate sales of $10,000 to enterprises in commerce under (2) above : 20 percent ;
direct out-of-State purchases in the amount of $100,000: 20 percent of 3 (a) above; local
purchases of goods originating outside the State: $200,000 or 20 percent of 3 (b). Total:
100 percent.
866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
over a similar line of business confined to repairing and installation, I appre-
hend no statutory direction , similar to that found by the Board in Hotel Asso-
ciation case , to warrant such an exemption . While the Board may at some
time decide, as a matter of policy, to refrain from entry into such field, it
has not yet so announced . In the meantime the guide for the Trial Examiner
must be the standard set up by the Board in its jurisdictional formula, itself
a policy determination . That formula does not exclude the present type of
enterprise . For the Trial Examiner to read into the formula an exemption
of a purely servicing operation would be, under the circumstances , to substitute
his policy views for those of the Board. While, where a policy question is
an open one , it might not be inappropriate for the Examiner to state and apply
his own view , such a course cannot, as a matter of sound judicial administra-
tion, be followed where the Board or the courts have apparently decided the
issue. If, therefore , the Respondent 's volume of business meets the jurisdic-
tional criteria set out by the Board , it follows that the Respondent is subject
to the Act.
III
As has been seen, the Respondent operates stores both in the State of Arkansas
and in the State of Tennessee. Citing the Borden case, supra, as authority,
the Board has asserted jurisdiction over enterprises operating in only two
States. Ruben Furniture Co., 91 NLRB No. 207; L. W. Hayes, Inc., 91 NLRB
1408; Riverside Memorial Chapel, Inc., 92 NLRB 1594. It therefore follows
from those decisions that-however the dictionary may define "multi"-the
Respondent is operating a "multistate" enterprise within the meaning of the
Borden case. On that basis alone, jurisdiction is to be exercised. The fact that
all the Respondent's shops may be within a single trading area does not seem
a basis for avoiding the application of the Board's standards. The volume of
sales is more than de minimus. If the Board will, as in the Borden caste,
assert jurisdiction where only the local unit of a multistate enterprise is in-
volved, it follows even more certainly that it will assert jurisdiction where,
as here, the entire enterprise is involved.
It is also, however, my opinion that, apart from the Borden principle, juris-
diction attaches by reason of the application of the combination principles
enunciated in the Rutledge and related cases cited above.
My conclusion is best set forth by the following tabulations of the Respond-
ent's sales and purchases.
Sales
Sales out of State :
Percentage relation
to jurisdictional
West Memphis, Arkansas, sales projected through- requirement
out 19518 $17,748 02-------------------------------------- 70.99+
While the Respondent's position is that the West Memphis sales are not indica-
tive of commerce on the ground that they are made exclusively to Arkansas resi-
dents, the fact is that they constitute sales made by an owner and operator, the
Respondent, located in a neighboring State. They therefore reflect commerce
between States. In this regard it may be noted that the repairman in the West
Memphis, Arkansas, shop is a resident of Memphis, Tennessee, who must com-
mute between the two States.
Percentage
Sales to firms over whom the Board would exert jurisdiction under
the standards set out in the Hollow Tree case $16,950.00--------- 33. 90
6 Where figures are not available for a full year's operation, the data may be projected
for a 12-month period . General Seat Co., 93 NLRB 1511.
NATIONAL TELEVISION SERVICE 867
Of the above figure of $16,950, $4,299.70 consists of a projection on a 12-month
basis of services and sales to Mccregors , Inc., a distributor , among other things,
of dishwashers and garbage disposals which the Respondent installs and services
under contract with McGregor. This contract was made in November 1951 and
performance began in December of that year . Either in December 1951, or up
to date of hearing, February 11, 1952 (it is not clear which), _\J Gregor author-
ized the Respondent to make specified installations amounting in service value
to $860. However, only $30 of this work was actually performed in December.
The Respondent therefore argues in his brief that only $30 is properly allocable
to 1951 sales. The General Counsel contends that the entire $860 should be
charged to 1951. I have concluded, however, that under the principle of the
General Seat case, supra, the $860 should be projected throughout 1951. Accept-
ing that figure as constituting sales of service for the period from December 1,
1951, to February 11, 1952, the projected sales to McGregor for 1951 are $4,299.70.
The firms represented in the above figure of $16,950 consist of the Western
Auto Stores and of dealers or distributors of nationally distributed radio and
television and electrical appliances all of whom shipped or sold goods valued at
more than $25,000 directly to points outside the State of Tennessee.
In view of the criteria established by the Board it is immaterial that all of
this work may have been performed by the Respondent in Memphis.
The Respondent contends that, at least in part, the warranty or other work
for many of these firms was at the expense of the customer-who paid a fee to
the dealer or distributor which the latter transmitted to the Respondent. The
record reveals, however, that the Respondent's services were expended pursuant
to agreement between the Respondent and the dealer or distributor. Without
such agreement the Respondent would have had no access to such business.
Moreover, the services which the Respondent performed in such connection were
necessary to the proper installation, servicing, and operating of the new sets sold
by the dealer, and thus essential to the advancement of the dealer's and the manu-
facturer's business. It has already been noted that the Respondent was author-
ized by the manufacturers involved to do their warranty work.
During 1951, apart from his business at the West Memphis, Arkansas, shop,
the Respondent performed services and sold goods, through the Memphis,
Tennessee, shops, in the States of Mississippi and Arkansas to the value of
$759 54. In addition, during the same period, he made sales of service or parts
on a cash-and-carry basis, in the Memphis stores, to persons who gave Mississippi
and Arkansas addresses. The value of such sales was $1,148.38. As to the
$759.54 the Respondent's position appears to be that such sales are isolated.
I do not find that a valid ground for ignoring them.
As to the $1,148 38, the Respondent's position is that there is no proof that
these patrons were actually nonresidents, or that the sets were in fact trans-
ported across State lines; and further that the sales do not constitute ship-
ments, are purely local in character, and have at most an indirect effect on
commerce.
However, no reason appears to question that the out-of-State addresses are
genuinely indicative of actual residence; or that the repaired sets were from,
or the sold parts for use at, such residences. No ground is suggested why the
fact should have been falsified; or why a foreign address should have been
given if the sales were for local use. It has already been noted that parts
of Mississippi and Arkansas are within the Memphis trading area. As to the
other contentions, I find them similarly not sustained. Whether their effect
is direct or indirect, the fact is that the Respondent performed services for
and sold merchandise to residents of other States for use in the other States.
242305--53-56
868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
That the interstate transportation of the service equipment or the purchased
goods was provided by the customer rather than by the Respondent, does not
appear to me to lessen the effect of the transactions upon commerce. It is
therefore found that both the $1,148.38 and the $759.54 figures constitute sales
in commerce. Their percentage relation to $25,000 is 7.63.
The General Counsel contends that $4,999.02 in sales made by the Respondent
in his Western Auto shops to the general public should be counted as sales
to Western Auto. No connection is shown, however, between those patrons and
Western Auto other than that some were owners of sets originally bought from
Western Auto which were out of warranty. I therefore do not consider these
sales as indicative of commerce involvement.
Purchases
During 1951 the Respondent purchased parts for all his shops, including that
in Arkansas, valued at $39,179.80, of which $2,413.10 was for the Arkansas shop.
All these purchases were made in Memphis, Tennessee, but the parts themselves
were manufactured outside the State of Tennessee. These parts are stored by
the Respondent in a central stockroom in Memphis, Tennessee, from which the
individual shops requisition them. Thus, all goods for the Arkansas business
are shipped into Tennessee and then out again to Arkansas. None of the
purchased goods can, therefore, be said to come to rest in Tennessee until with-
drawn from the Respondent's stockroom for use in a Tennessee store! While
the General Counsel in his brief apparently contends that the $2,413.10 of parts
used in the Arkansas shop should be considered as direct purchases, in my
opinion they are indirect, like the others. Consequently the percentage of
purchases should be $39,197.80 divided by $1,000,000, which equals 3.917 percent.
Percent-
The results of the above tabulation, in summary, are as follows : age
Out-of-State sales at the Arkansas store------------- $17,748.02 70.99
Sales to Tennessee firms over whom the Board would
exert jurisdiction---------------------------------- 16,950.00 33.90
Miscellaneous sales in Tennessee to out-of-State cus-
tomers-------------------------------------------- 1,907.92 7.63
Indirect purchases-goods originating outside Tennessee- 39, 179. 80 3.91
Total -------------------------------------------------------- 116.43
If no sales at all to McGregor Inc., are allocated or projected as 1951 business,
the figure of $16,950 given above should be $12,650 plus, and the resultant per-
centage 25.30 percent rather than 33.90 percent. In such case the total per-
centage sum would be 107.S3 percent rather than 116.43 percent-still well
above the 100 percent required.
It is consequently found that the Respondent is within the commerce criteria
set out by the Board in the above-cited cases-and consequently subject to the
jurisdiction of the Act-in the following respects: (1) He operates a multi-
state enterprise, and (2) the volume and type of his transactions, whether of
a multistate character or not, meet the Board's standards for exertion of
jurisdiction.
4 And not even certainly then. As has been seen, the Memphis stores made sales to
out-of-State customers.
NATIONAL TELEVISION SERVICE
THE VNFAIB LABOR PRACTICES
869
Subject to his contention that he is not subject to the Board's jurisdiction,
the Respondent's answer, as amended, admitted the following allegations of
the complaint , inter alia:
V
Respondent, by its officers, agents, representatives and employees, more
particularly by Justice, McKeown, Fienstien and other supervisory per-
sonnel and foremen, while engaged in its business operations described
above, from on or about June 27, 1951, and continuing to date, committed,
authorized, instigated or acquiesced in certain acts of conduct including,
but not limited to, the following, to wit :
(a) Interrogating employees as to their Union affiliations, activities or
desires.
(b) Threatening to discharge employees because of their Union affilia-
tions, activities or desires.
(c) Threatening to discharge employees if the Union comes into the
Respondent's shop.
(d) Threatening to cease operations before negotiating with the Union
or signing a contract with the Union.
(e) Instructing employees to drop their Union activities, because the
Respondent could not afford the Union.
(f) Threatening to "cause trouble" and to prevent striking employees
from finding other jobs.
(g) Advising individual employees that civil charges and criminal charges
brought against them at the instigation of the Respondent would be dropped
if the employees would get out of the Union.
(h) Requesting individual employees who are on strike to forego their
strike and return to work for the Respondent.
VI
All of Respondent's radio and television technicians and stockmen located
at the Respondent's plant in Memphis, Tennessee, and West Memphis, Ark-
ansas, excluding all office and clerical employees, technical employees, pro-
fessional employees, watchmen, guards, refrigeration repairmen and super-
visors as defined in the Act, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9, subsection (b),
of the Act.
VII
On or about June 26, 1951, a majority of the employees of the Respondent
in the unit described above in paragraph VI designated or selected the Union
as their representative for the purposes of collective bargaining with the
Respondent.
VIII
At all times since June 27, 1951, the Union has been the representative for
purposes of collective bargaining of a majority of the employees in said
unit, and, by virtue of Section 9, subsection (a), of the Act, has been, and is
now, the exclusive representative of all the employees in said unit for the
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
purposes of collective bargaining with respect to rates of pay, hours of
employment and other terms and conditions of employment.
IX
On or about June 27, 1951, and at all times thereafter, Respondent was
requested by the Union to recognize it as the exclusive representative of
its employees in the aforesaid unit described in paragraph VI for the pur-
poses of collective bargaining and to bargain collectively with the Union
with respect to rates of pay, hours of employment and other terms and con-
ditions of employment.
X
Respondent, by its officers, agents and representatives, beginning on or
about June 27, 1951, and continuously thereafter, did refuse, and continues
to refuse, to bargain collectively with the Union as the exclusive representa-
tive of all employees in the aforesaid unit described in paragraph VI
above with respect to rates of pay, hours of employment and other terms
and conditions of employment.
XI
On or about July 25, 1951, the employees of Respondent ceased work con-
certedly and went on strike.
XII
The strike described above in paragraph XI was caused and prolonged by
the unfair labor practices of Respondent described above in paragraphs
V and X.
XIII
By the acts described above in paragraphs V and X and by each of said
acts, Respondent did interfere with, restrain and coerce, and is interfering
with, restraining and coercing, its employees in the exercise of their rights
guaranteed in Section 7 of the Act, and did thereby engage in, and is thereby
engaging in, unfair labor practices within the meaning of Section 8, sub-
section (a) (1), of the Act.
XIV
Respondent, by the acts described in paragraph X in connection with the
allegations contained in paragraphs V, VI, VII, VIII, and IX, has refused,
and continues to refuse, to bargain collectively with the representative of
its employees and thereby has engaged in, and is engaging in, unfair labor
practices within the meaning of Section 8, subsection (a) (5), of the Act.
Having found above that the Respondent is subject to the jurisdiction of the
Act, it is now found, on the basis of the above admissions, and pursuant to agree-
ment of the parties, that the allegations of the complaint are fully established
by the record.e
s After the Respondent had amended his answer on the record , to admit the above allega-
tions, the following colloquy took place :
Mr. HESS. I have no objection to the amendment of the answer , Mr. Examiner.
Just so the record might be fully clear of what the attorney for respondent and
attorney for General Counsel are attempting to do here , is that we are attempting to
put at issue only one point, and that is whether or not this company comes within
the jurisdiction of the Board.
Now, of course, if they don't, then the complaint would have to be dismissed. If
they do, it is the understanding of the parties that the amendments to the answer
NATIONAL TELEVISION SERVICE
THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
871
The activities of the Respondent set forth above, occurring in connection with
its business operations , previously described , have a close , intimate , and sub-
stantial relation to trade, traffic and commerce among the several States, have
led and tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
THE REMEDY
Having found that the Respondent has engaged in unfair labor practices , it will
be recommended that he cease and desist therefrom , and take certain action
which will effectuate the policies of the Act.
It has been found that the Respondent has refused to bargain collectively with
the Union . It will therefore be recommended that the Respondent cease and
desist therefrom , and also that upon request he bargain collectively with the
Union with respect to wages, hours , and other terms and conditions of em-
ployment , and if understanding is reached embody such understanding in a
written and signed agreement.
The strike being an unfair labor practice strike , it will be further recommended
that the Respondent , upon application therefor, reinstate the employees who
went on strike, and make them whole for any loss of pay resulting if such rein-
statement is denied . Stafford Operating Co., 96 NLRB 1217 , Athens Mfg . Co., 69
NLRB 605; City Packing Co., 98 NLRB 1261 ; N. L. R. B . v. Globe Wireless, Ltd.,
193F.2d748 (C.A.9).
CONCLUSIONS OF LAW
1. Local Union 1275 , International Brotherhood of Electrical Workers, AFL,
is a labor organization within the meaning of Section 2 (5) of the Act.
2. All radio and television technicians and stockmen located at the Respond-
ent's plants in Memphis , Tennessee , and West Memphis , Arkansas , excluding all
office and clerical employees , technical employees , professional employees, watch-
men, guards , refrigeration repairmen , and supervisors as defined in the Act,
constitute a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9 (b) of the Act.
3. Local Union 1275 , International Brotherhood of Electrical Workers, AFL,
was on June 21, 1951 , and at all times since has been , the exclusive representa-
tive of all employees in the aforesaid unit for the purposes of collective bargain-
ing within the meaning of Section 9 (a) of the Act.
4. By refusing to bargain collectively with the aforesaid Union as the exclusive
bargaining representative of the employees in the appropriate unit, the Re-
spondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 ( a) (5) of the Act.
5. By interfering with, restraining , and coercing its employees in the exercise
of rights guaranteed in Section 7 of the Act, the Respondent has engaged in
unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
and the statements we have made on the record will mean that if the Board does find
jurisdiction , or if the Trial Examiner finds jurisdiction , that the appropriate order
for an 8 (a) (1) and ( 8) (a) (5) complaint and violations may be issued only, of
course, upon the finding this Company is within the jurisdiction of the Board.
Is that stated fairly enough?
Mr. FOWLER . That is correct.
Trial Examiner SCHNEIDER . Upon my understanding , if I find jurisdiction, I will
feel quite free to find all the allegations of the complaint substanti [ ated] by all the
evidence and to issue a recommended order in accordance with the finding.
Mr. FOWLER. That is right.
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6. The strike of July 25 , 1951 , was caused and prolonged by the Respondent's
unfair labor practices.
7. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication in this volume.]
PARKER BROTHERS AND COMPANY, INC. and INTERNATIONAL BROTHER-
HOOD OF TEAMSTERS, CHAUFFEURS , WAREIIOUSEMEN AND HELPERS,
AFL, LOC.1L No. 968. Case No. 39. (hJ l /f1. December 9, 1952
Decision and Order
On June 4, 1951, Trial Examiner J. J. Fitzpatrick issued his Inter-
mediate Report in the above-entitled proceeding finding that the Re-
spondent engaged in and was engaging in certain unfair labor prac-
tices in violation of Section 8 (a) (1), (2), and (3) of the Act, and
recommending that it cease and desist therefrom and take certain affir-
mative action, as set forth in the copy of the Intermediate Report at-
tached hereto. The Trial Examiner also found that the Respondent
had not engaged in certain other alleged unfair labor practices in
violation of Section 8 (a) (2) and (5) of the Act and recommended
that the complaint be dismissed as to such allegations. Thereafter,
the Respondent; International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers, AFL, Local No. 968, the charging party,
herein called the Teamsters; and the General Counsel filed exceptions
to the Intermediate Report and supporting briefs. The General Coun-
sel also filed request for permission to file reply brief, and attached
thereto General Counsel's reply brief.
The General Counsel's request and his reply brief pertained solely
to the question, raised for the first time in the Respondent's exceptions
and brief, of the General Counsel's failure to serve Shell Workers
Independent Union, herein called the Independent, with notice of
hearing and complaint, and of including it as a party in the proceeding.
The Independent was alleged in the complaint as having been domi-
nated, assisted, and supported by the Respondent, and particularly,
that it was assisted in the form of a contract with the Respondent con-
taining an illegal union-security clause requiring membership in the
Independent as a condition of employment, and requiring that the em-
ployees execute an authorization for the deduction by the Respondent
of membership dues from their wages to be paid over to the
Independent.
101 NLRB No. 147.