Appliance Supply Co.

National Labor Relations Board - Board Decisions

Apr 21, 1960

127 N.L.R.B. 319 (N.L.R.B. 1960)

APPLIANCE SUPPLY COMPANY 319
the union activities or membership of the helpers. There is no showing in this
record of any union animus by the Respondent On the contrary there is affirmative
evidence that its relations with the Union are harmonious. 1 am satisfied that even
if the Union had not organized the helpers and petitioned for the election which
resulted in the Board 's finding that they were the Respondent's employees the
Respondent would have taken the December 2 measures if in some other way, as for
example by opinion of its attorney, it had believed the helpers could legally be
deemed its employees because of the conditions which obtained before the December
2 changes Accordingly, I find that the Respondent did not violate Section 8 (a) (3)
and (1) of the Act as alleged in Case No. 15-CA-1234.
Nor do I find a violation of Section 8(a)(5) of the Act as alleged in Case No.
15-CA-1527. Here it must be noted that the claim of violation is the Respondent's
refusal on and after March 10, 1959, to bargain with the Union for helpers. If,
as the Respondent contends, it employed no helpers on these dates, its denial of
refusal to bargain must be sustained, for the statutory mandate compels an employer
to bargain only with the representative of his employees. The Board's Decision and
Direction of Election and its Supplemental Decision and Direction of Election in
Case No. 15-RC-1611 referred ultimately only to the status of the nine helpers
whose ballots were challenged in the December 13, 1957, representation election.
These decisions did not constitute specific findings that any helpers other than those
nine whose ballots were deemed valid were employees. Bearing in mind that the
Board had crucially distinguished these nine helpers from those who were directly
hired and paid by drivers and of whom the Respondent had no knowledge, it
follows that helpers who had been then or were afterward hired by drivers on this
basis were not employees of the Respondent. The foregoing nine helpers who were
found by the Board to be employees had left the Respondent's employ for nondis-
criminatory reasons before March 10, 1959. The hire of all other helpers after
December 2, 1957, was governed by the Respondent's notice to its drivers of that
date. Because by its deliberate lawful action of December 2, 1957, the Respondent
ceased acquiring knowledge pertaining to the identity of any helpers subsequently
hired by drivers, at least in the sense implied by the Board. I find that on and after
March 10, 1959, the Respondent did not employ any helpers for whom the Union
sought bargaining I consequently find that by notifying the Union it would be a
waste of time to negotiate for persons it did not employ and by continuing to adhere
to this position the Respondent did not violate Section 8(a)(5) of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case , the Trial Examiner makes the following-
CONCLUSIONS OF LAW
1. National Dairy Products Corporation, Sealtest Southern Dairies Division, New
Orleans, Louisiana, is engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. General Truckdrivers, Chauffeurs, Warehousemen & Helpers, Local No. 270,
Ind., is a labor organization within the meaning of Section 2(5) of the Act.
3. The allegations of the complaint that the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a) (1), (3), and
(5) of the Act, have not been sustained.
[Recommendations omitted from publication.I
Appliance Supply Company and Local Union 2261 , Gulf Coast
District Council , United Brotherhood of Carpenters apd
Joiners of America , AFL-CIO, Petitioner . Case No. 12-RC-
772. April 21, 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 Roy M. Speer, Jr., hearing
127 NLRB No. 47.
320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are affirmed.
Upon the entire record in this case the Board finds :
1. The parties stipulated to the-following commerce facts: The
Employer is a private corporation engaged in the retail sales, distribu-
tion, and repair of Frigidaire products and in the fabrication and
wholesale distribution of aluminum knocked-down windows. Both
businesses, though otherwise separate except for common admin-
istrative services, are conducted from the same premises at Fort
Myers, Florida. During the preceding fiscal year, the Employer's
gross revenue from the retail sales, distribution, and service of
Frigidaire products amounted to approximately $263,000, and the
gross revenue from the fabrication and wholesale distribution of its
windows amounted to approximately $343,000. In the same fiscal
year, the Employer received directly from points out of State, sup-
plies, materials, and other products for its window operations valued
at approximately $27,000, and purchased from local suppliers Frigid-
aire products, originating outside the State, in excess of $50,000.
In addition, during the same period, the value of products shipped
by the Employer and services performed by it outside the State of
Florida amounted to approximately $7,500.
The Employer opposes the assertion of jurisdiction by the Board
because it claims its retail appliance and window businesses are sepa-
rate and unrelated, and neither in and of itself has sufficient com-
merce to meet any of the Board's current standards for assertion of
jurisdiction. It is true that the operations of the Employer, if con-
sidered separately, do not meet any of the Board's present jurisdic-
tional standards. However, it has been the Board's established policy,
continued when the Board in October 1958 adopted its new jurisdic-
tional standards, to apply the concept that it is the impact on com-
merce of the totality of an employer's operations that should deter-
mine whether or not the Board will assert jurisdiction.' It is also
the Board's established policy that in cases where an employer, con-
stituting as in this case a single corporate entity, operates both a retail
and a nonretail enterprise, and the nonretail aspect of the employer's
operations is clearly not de minimis, the Board will ordinarily apply
Vnretail standards in determining whether to assert jurisdiction
where neither enterprise alone has sufficient commerce on which to
assert jurisdiction?
Present jurisdictional standards applicable to nonretail enterprises
provide for the assertion of jurisdiction if such enterprise has direct
or indirect inflow, or a combination of both amounting to $50,000
'Potato Growers Cooperative Company, 115 NLRB 1281 ; The T. H. Rogers Lumber
Company , Inc, 117 NLRB 1732 ; Siemons Mailing Service, 122 NLRB 81, 84.
2 The T H Rogers Lumber Company, Inc., supra Cf. Potato Growers Cooperative
Company, supra, and Emil Denemark , Inc, 120 NLRB 1059.
APPLIANCE SUPPLY COMPANY 321
annually.' Looking, therefore, to the totality of the Employer's
operations and applying the pertinent nonretail standard, the Em-
ployer's sum total of the direct inflow of the window business and the
indirect inflow of the retail business exceeds $50,000 annually.
Accordingly, we find that the Employer is engaged in interstate
commerce,4 and that it will effectuate the policies of the Act to assert
jurisdiction herein. The Employer's motion to dismiss the petition
on jurisdictional grounds is therefore denied.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.5
3. A question affecting commerce exists concerning the representa-
tion of certain employees of the Employer, within the meaning of
Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The Petitioner seeks a unit of production and maintenance em-
ployees at the Employer's Fort Myers, Florida, plant. The Em-
ployer's only contention with respect to the appropriateness of the
unit is that such a unit is inappropriate. It is, however, well estab-
lished that production and maintenance units as such are presump-
tively appropriate,' and that in the absence of evidence to show
otherwise the Board will find a unit of production and maintenance
employees appropriate excluding therefrom those employees cus-
tomarily excluded. An issue appears to be presented as to the super-
visory status of Donald Juull. Juull is classified as "Local assembly
man." The record shows that he is in charge of his department,.
supervises the work of three or four employees, and has the authority
effectively to recommend the hire or discharge of the employees under-
his supervision. In view of the foregoing, we find that Donald Juull_
is a supervisor within the meaning of the Act. Accordingly, we ex-
clude him from the unit. We find, therefore, the following employees.
of the Employer constitute a unit appropriate for the purposes of col-
lective bargaining within the meaning of Section 9 (b) of the Act :
All production and maintenance employees at the Employer's plant.
including truckdrivers and helpers, but excluding all office clerical
employees, managerial and sales personnel, professional and technical
employees, guards, and supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
MEMBER RODGERS took no part in the consideration of the above
Decision and Direction of Election.
3 Siemens Hailing Service, supra, at 85
4 See Southwest Hotels, Inc, 126 NLRB 1151.
5 As the Petitioner is an organization admitting employees to membership and is formed
for the purposes of bargaining with employers concerning wages, hours, and conditions of
employment, we find that it is a labor organization within the meaning of the Act.
6 Beaumont Forging Company, 110 NLRB 2200
560940-61-vol. 127-22