Westside Market Owners Association

National Labor Relations Board - Board Decisions

Jan 15, 1960

126 N.L.R.B. 167 (N.L.R.B. 1960)

WESTSIDE MARKET OWNERS ASSOCIATION 167
3 The Union was on September 30, 1958, and at all times thereafter has been,
and now is, the exclusive representative of all employees in the aforesaid unit
4 By refusing to bargain with the Union on and after October 1, 1958, and by
its unilateral action in granting economic benefits to its employees after said date,
the Respondent has engaged in unfair labor practices within the meaning of Section
8(a) (5) and (1) of the Act
5 By interfering with, restraining, and coercing its employees . in the exercise of
the rights guaranteed in Section 7 of the Act, the Respondent has engaged in unfair
labor practices within the meaning of Section 8(a),(l) of the Act
6 The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act
A
[Recommendations omitted from publication 7
Westside Market Owners Association ; Sam Wong, Jim Wong,
Roy Wong and Ben Sum , Individually and as Co-Partners
d/b/a California Market; G. R Bailey and Lee R. Baiza, In-
dividually and as Co-Partners d/b/a Coalinga Market; F. A.
Mottle, V . J. Motte, B Motte and J. Motte , Individually and
as Co-Partners d/b/a B M Food Market; William H. Blalock
and Mary H. Blalock, Individually and as Co-Partners d/b/a
Corner Market , and State Market of Coalinga, Inc. and Re-
tail Clerks Union, Local 1288, Retail Clerks International
Association, AFL-CIO and Central Valley Market Employees
Association , Party to the Contract . Case No A0--S Jainru-
ary 15, 1960
ADVISORY OPINION
A petition has been filed by Retail Clerks International Association,
AFL-CIO, Local 1288, herein called the Union, praying for an ad-
visory opinion by the Board as to whether it would assert jurisdiction
over the operations of State Market of Coalinga, California Market,
Corner Market, B M Food Market, and Coalinga Market, herein
collectively called Respondents Said petition in relevant part alleges
that
1 There is now pending before the Superior Court of the State of
California a suit numbered 105,598 in which State Market of Coalinga
(herein called State Market) and California Market are plaintiffs
and the Union and others are defendants
2 Said action is the second suit brought by the same plaintiffs
against the same defendants in a California State court arismg out
of the same labor dispute The first suit, brought in the Fresno
County Superior Court, was dismissed by the court "on the ground
that exclusive jurisdiction was vested in the National Labor Relations
Board "
3 The National Labor Relations Board , assumed jurisdiction of
two prior unfair labor practice charges arising out of the instant
dispute, but they are no longer pending before the Board as a result
126 NLRB No 29
168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of a settlement agreement disposing of said charges. Those cases
are numbered 20-CA-1647 and 20-CC-172.
4. On August 13, 1959, the Union filed a charge with the Board's
20th Regional Office against Respondents herein, and "this charge
is now pending before the General Counsel on submission from the
Regional Director."
5. Respondents "admit that they are members of the Westside
Market Owners Association, a multi-employer association, through
which the said [Respondents] guide their labor relations policies,
and thereby [the Union] contends that the commerce figures appli-
cable are the total figures of the association."
6. In the first State court action Respondents submitted the fol-
lowing commerce data :
Gross sales
Afaant Establishment in 1958
Edward Young --------- State Market of Coalinga____ $622,103.95
Sam Wong_____________ California Market__________ 642, 652.90
William H. Blalock----- Corner Market_____________ 326, 346.88
F. A. Motte_____________ B M Food Market__________ 392,372. 54
G. R. Bailey ------------ Coalinga Market___________ 258, 002.91
A response dated December 14, 1959, was mailed to the Board's
20th Regional Office by Ted R. Frame, as attorney for Respondents.
It has been transmitted to the Board by said Regional Office. Said
response in substance alleges that :
7. The California court denied the Union's motion and demurrers
to dismiss the complaint based on lack of jurisdiction, and has issued
a temporary restraining order and a preliminary injunction.
8. Cases numbered 20-CA-1647 and 20-CC-172 are moot.
9. If the August 13, 1959, charge refers to Case No. 20-CA-1692,
"it is not proper" because it has not yet been disposed of by the
General Counsel.
10. The Union has not availed itself of or exhausted its procedural
rights under California law to attack the jurisdiction of the State
court; and in any event, the Board's assumption of jurisdiction does
not, under California Supreme Court decisions, deprive California
courts of jurisdiction. "The question is whether or not there is a
conflict."
Thereafter, by letter dated December 24, 1959, said Ted R. Frame
sent a letter to the Board "enclosing for your attention a copy of a
complaint which has been issued by the 20th Region, together with
my answer thereto." The complaint enclosed in said letter was a
consolidated complaint in Cases Nos. 20-CA-1647 and 20-CA-1692.
11. Said complaint alleged, among other things, that "II(A)
[Westside Market Owners Association], an unincorporated associa-
tion ... located at ... Coalinga, California, is an employer asso-
ciation which has its members ... California Market, Coalinga
WESTSIDE MARKET OWNERS ASSOCIATION 169
Market, B M Food Market, Corner Market, and State Market, which
operate retail grocery stores and meat markets at Coalinga, Cali-
fornia: Among its functions [Westside Market Owners Association]
bargains collectively on behalf of said employer members with labor
organizations. During the year 1958, the gross volume of business
of said employer members was by value in excess of $500,000. During
the same period, said employer members, in the course and conduct of
their operations purchased and received groceries valued in excess of
$100,000 from United Grocers, Ltd., and other suppliers located within
the State of California, of which, groceries valued in excess of $50,000
was received by United Grocers, Ltd., and said other suppliers, in
interstate commerce directly from States other than the State of
California."
12. The answer to said complaint is signed by Ted R. Frame as
counsel for Westside Market Owners Association, California Market,
Coalinga Market, B M Food Market, Corner Market, and State
Market. Said answer in pertinent part "admit[s] the allegations of
paragraph II (A) of the complaint except that respondents have no
knowledge of whether groceries valued in excess of $50,000.00 `was
received by United Grocers, Ltd., and said other suppliers, in inter-
state commerce directly from States other than the State of Califor-
nia,' and upon such grounds deny said allegation. Respondents deny
that they were or are engaged in commerce as is alleged in paragraph
II (B) of the complaint."
On the basis of the above, the Board is of the opinion that :
1. Respondents are engaged in the business of operating retail
grocery stores and meat markets.
2. Respondents are members of Westside Market Owners Associa-
tion, an employer association which bargains collectively on behalf
of its employer members with labor organizations.
3. The Board's current standard for exercising jurisdiction over a
retail enterprise which falls within its statutory jurisdiction is "a
gross volume of business of at least $500,000 per annum." Carolina
Supplies and Cement Co., 122 NLRB 88. In such instances "some
proof must be made of legal jurisdiction," that is, that the employer
involved is engaged in commerce or that his operations affect com-
merce within the meaning of Section 2(6) and (7) of the National
Labor Relations Act, as amended, in addition to a showing that the
relevant gross volume test has been satisfied. Catalina Island Sight-
seeing Lines, 124 NLRB 813. Although evidence has been received
that the Respondents' operations are subject to the Board's legal or
statutory jurisdiction, it has been denied by Respondents.
4. Respondents are members of a multiemployer association known
as Westside Market Owners Association. The Board permits a group
of employers to join together for the purpose of conducting collective-
bargaining negotiations; and the employers constitute a single em-
170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployer for jurisdictional purposes. Siemons Mailing Service, 122
NLRB 81. "In these circumstances the relevant criterion in deter-
mining the Board's jurisdiction is . . . the combined operations of all
the Employers" in the multiemployer association. Belleville Employ-
ing Printers, 122 NLRB 1019.
Accordingly, the parties are advised, pursuant to Section 102.103
of the Board's Rules and Regulations, Series 8, as follows :
1. Although the facts as to the Board's legal jurisdiction are con-
troverted, there have been submitted sufficient facts to enable the
Board to advise the parties with respect to whether it would assert
jurisdiction.
2. The Board would assert jurisdiction over labor disputes involv-
ing those Respondents who are in commerce or whose operations
affect commerce and whose annual gross volume of business is $500,-
000 or more.
3. The Board would assert jurisdiction over labor disputes involv-
ing a multiemployer association or individual members thereof, if
the total annual volume of gross business of all the members amounted
to $500,000 or more and legal jurisdiction existed over the association
of one or more members thereof.
Middletown Lumber Company, Petitioner and Local 1477, United
Brotherhood of Carpenters and Joiners of America, AFL-
CIO.' Case No. 9-RM-223. January 15, 1960
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Theodore K. High, hearing
officer. 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 Leedom and Members Bean and Fanning].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.2
3. A 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.
'Herein called Local 1477
2 At the hearing, Middletown Lumber Company Independent Union and Ohio Valley
District Council ; United Brotherhood of Carpenters and Joiners of America , AFL-CIO,
126 NLRB No. 28.