Carolina Supplies and Cement Co.

National Labor Relations Board - Board Decisions

Nov 14, 1958

122 N.L.R.B. 88 (N.L.R.B. 1958)

88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
While it would seem to me to have been much wiser for Congress to
have limited the Board's jurisdiction, leaving much to the States, that
is the province of Congress and not the Board. Since Congress, as its
actions have been interpreted by the Supreme Court, did not see fit
to do so, it seems to me incumbent upon the Board to "reassert its
jurisdiction" as the Supreme Court suggested, but that it should do
so in a more realistic way.
Since I would have asserted jurisdiction over this enterprise in any
event, I concur in the result.
Carolina Supplies and Cement Co. and General Drivers, Ware-
housemen and Helpers , Local Union No. 509, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America , Petitioner. Case No. 11-RC-1147. Novem-
ber 14, 1958
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 John M. Dyer, hear-
ing officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer is a South Carolina corporation engaged in the
business of selling building supplies at retail in Charleston,, South
Carolina. During the 1957 calendar year the Employer's gross
volume of business was approximately $635,000. All sales were made
within the State of South Carolina. Its purchases for the same
period amounted to approximately $523,000 of which $336,000 were
received from points outside the State of South Carolina. The
Employer contends that the Board should not take jurisdiction be-
cause its operations do not satisfy the jurisdictional standards for
retail enterprises applied by the Board since 1954.1
Ever since the enactment of the National Labor Relations Act in
1935 the Board has consistently held to the position that it better
effectuates the policies of the Act and promotes the prompt handling
of cases not to exercise its jurisdiction to the fullest possible extent
under the authority delegated to it by Congress. For the first
15 years the Board exercised its discretion in this area on a case-by-
case basis. In 1950 the Board first adopted certain jurisdictional
standards designed to aid it in determining where to draw the divid-
ing line between exercised and unexercised jurisdiction. In 1954 the
'Hogue and Knott Supermarkets , 110 NLRB 543; The T . H. Rogers Lumber Company,
117 NLRB 1732.
122 NLRB No. 17.
CAROLINA SUPPLIES AND CEMENT CO. 89
Board reexamined its jurisdictional policies in the light of its ex-
perience under the 1950 standards and revised its jurisdictional stand-
ards. At that time the Board noted that "further changes in circum-
stances may again require future alterations of our determinations
one way or another."' Consistent with this practice of periodic re-
view of its jurisdictional policies and as a direct consequence of the
Supreme Court's decision in P. S. Guss d/b/a Photo Sound Prod-
ucts v. Utah Labor Relations Board' denying to the States authority
to assert jurisdiction over enterprises as to which the Board declines
to exercise its statutory jurisdiction, the Board reexamined its exist-
ing jurisdictional policies and the standards through which such.
policies were implemented. As a result the Board determined to re-
vise its jurisdictional policies so that more individuals, labor organi-
zations, and employers may invoke the rights and protections afforded
by the statute. In Siemans Mailing Service 4 the Board set forth the
considerations which persuaded it that this could best be accom-
plished by the utilization of revised jurisdictional standards as an
administrative aid in making its jurisdictional determinations. The
Board has chosen this case to set forth the revised standard to be
applied in all future and pending cases involving retail enterprises.
The Board has decided that it will assert jurisdiction over all retail
enterprises 5 which fall within its statutory jurisdiction and which
do a gross volume of business of at least $500,000 per annum. The
Board will apply this standard to the total operations of an enter-
prise whether it consists of one or more establishments or locations,
and whether it operates in one or more States.
In adopting this standard the Board has departed from its past
practice of also utilizing outflow and inflow standards in aid of its
jurisdictional determinations with respect to retail enterprises. It
has done so because experience has shown that under past standards
assertion of jurisdiction over retail enterprises usually depended upon
a retail enterprise's volume of inflow. The ascertainment of inflow
figures often involves extensive examination of an employer's records
in which every purchase must be considered, which is time-consuming
both for personnel of the employer involved and the Board. Gross
volume of business figures on the other hand are readily obtainable
and their production places no hardship upon employers. Accord-
ingly, in the interests of expediting the handling of the increased
volume of retail cases which the Board expects will result from the
liberalization of its jurisdictional policies, the Board decided to apply
only a gross volume of business standard to such enterprises. The
Is Edwin D. Wemyss , an individual, d/b/a Coca-Cola Bottling Company of Stockton,
110 NLRB 840, 842.
8353 U.S. 1.
4122 NLRB 81.
5 The term "retail enterprises" shall be deemed to include taxicab companies.
1 .11
90 DECISIO1tS OF NATIONAL LABOR RELATIONS BOARD
$500,000 standard chosen by the Board should, in its opinion, reason-
ably insure that jurisdiction will be asserted over all labor disputes
involving retail enterprises which tend to exert a pronounced impact
upon commerce.
In the present case, as it is clear that the Employer's gross volume of
business of $635,000 exceeds the minimum amount required under
the new standard, the Board finds that it will best effectuate the
policies of the Act to assert jurisdiction herein.
2. The labor organization involved claims to represent certain
employees of the Employer.
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.
4. We find, in accordance with the agreement of the parties, that
a unit of the Employer's warehousemen, truckdrivers, and helpers at
Charleston, South Carolina, excluding clerical employees , guards, 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.
[Text of Direction of Election omitted from publication.]
Raritan Valley Broadcasting Company, Inc.' and American
Federation of Television and Radio Artists, New York Local,
AFL-CIO, Petitioner. Case No. 22-RC-190. November 14,1958
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 Oscar Geltman, hearing of-
ficer. The hearing officer's rulings. made at the hearing are free from
prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer is a radio broadcasting company engaged in the
operation of a radio station with call letters WCTC-AM and FM,
serving the area of Middlesex and Somerset counties in New Jersey.
During the calendar year preceding the hearing the Employer' s gross
revenues were approximately $196,244 2 It receives revenues gen-
erally from the sale of time for commercial advertising, from the sale
of talent and the furnishing of material or services to advertisers.
'The Employer's name appears as corrected at the hearing.
51n view of our disposition of this case , we need not determine whether the amount of
$6,119 which advertising agencies deducted prior to paying the Employer the amount
charged them for use of time is properly attributable to the Employer as gross income,
thus bringing the Employer 's operations within the $200 ,000 gross revenue standard of
Hanford Broadcasting Company, 110 NLRB 1257.
122 NLRB No. 16.