District 76, Retail, Wholesale and Dept. Store Union

National Labor Relations Board - Board Decisions

Jan 13, 1961

129 N.L.R.B. 1339 (N.L.R.B. 1961)

DISTRICT 76, RETAIL, WHOLESALE & DEPT. STORE UNION 1339
ment, heelpad department, box department, machine storage depart-
ment, general maintenance department, and all receiving clerks, repair
rack employees, stamp heelpads employees,14 standard clerks, and
transportation coordinators, but excluding all office clerical employees,
professional employees, technical employees, watchmen-guards, and
all supervisors as defined in the Act.15
[Text of Direction of Election omitted from publication.]
14 In its brief, the Petitioner agreed with the Employer to include the repair rack and
stamp heelpads employees.
'b The Petitioner has not Indicated whether it desires to go to an election in the broader
unit found appropriate for which its showing of Interest is adequate . If the Petitioner
wishes to withdraw, it may do so upon appropriate notification to the Regional Director.
District 76, Retail , Wholesale and Department Store Union,
AFL-CIO and Irvin Morgan t/a Morgan Shoe Company. Case
No.4-CP-11. January 13, 1961
DECISION AND ORDER
On August 3, 1960, Trial Examiner Samuel Ross issued his Inter-
mediate Report in the above-entitled proceeding recommending dis-
missal of the complaint for lack of jurisdiction, as set forth in the copy
of the Intermediate Report attached hereto. Thereafter, the General
Counsel filed exceptions to the Intermediate Report and a supporting
brief.
The Board has considered the rulings of the Trial Examiner, made
at the hearing in connection with the jurisdictional issue, and finds
that no prejudicial error was committed. These rulings are hereby
affirmed. The Board has considered the entire record in this case, in-
cluding the Intermediate Report, the exceptions, and the brief, and
hereby adopts the, findings, conclusions, and recommendations of the
Trial Examiner.
We find, in agreement with the Trial Examiner, that it would not
effectuate the purposes of the Act to assert jurisdiction in this case.
The Employer operates a small retail shoe store chain in the Metro-
politan Philadelphia area. In 1959 it operated three stores for the
entire year, one store from January to September which it then closed
permanently, and two stores for a few months in the last half of the
year. The Employer's gross sales from all sources were about $405,000
for the entire year 1959. The Trial Examiner recommended that the
complaint be dismissed because the Employer's sales did not reach the
Board's jurisdictional standard of $500,000 for retail enterprises.
The General Counsel contends that jurisdiction should be asserted
because the Employer's business would have been more than $500,000
129 NLRB No. 157.
1340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
if its potential sales in 1959 were added to its actual sales. He would
thereby add to the actual sales of $405,000, estimated figures for sales
which the newly opened stores would have done if they had been in
business for all of 1959 instead of for less than half of the year.
We agree with the General Counsel that it is permissible in the
circumstances of this case to project the sales of the Employer's newly
opened stores over a 12-month period to obtain a reasonably reliable
estimate as to their annual volume of business.' We believe it im-
proper, however, to add the total sales thus obtained to the actual an-
nual sales of all the Employer's other stores. The same logic which
permits projection of the sales figures of the new stores, requires also
elimination from consideration of sales which will not be repeated
during the period under projection, as obviously is the case with the
store that went out of business.
Accordingly, as the Employer's gross annual sales computed as
above are less than the required $500,000, we find that it will not
effectuate the policies of the Act to assert jurisdiction herein.
[The Board dismissed the complaint.]
' Sequim Lumber and Supply Company, 123 NLRB 1097.
INTERMEDIATE REPORT
Upon a charge filed by Irvin Morgan , t/a Morgan Shoe Company, herein called
the Company, the General Counsel of the National Labor Relations Board, by the
Regional Director for the Fourth Region ( Philadelphia , Pennsylvania ), issued his
complaint dated April 14, 1960, against District 76, Retail , Wholesale and Depart-
ment Store Union, AFL-CIO, herein called the Union or Respondent, alleging that
since April 5, 1960, the Union has picketed the premises of the Company in viola-
tion of Section 8(b)(7)(B) of the Labor Management Relations Act, 1947, as
amended, 73 Stat. 519, herein called the Act. The Respondent's answer denies
that the Company' s business meets the minimum standards fixed by the Board for
the assertion of jurisdiction , and also denies the commission of unfair labor practices.
Pursuant to notice , a hearing was held before Samuel Ross, the duly designated
Trial Examiner , on May 18 and July 21, 1960. All parties were represented at
the hearing by counsel and were afforded full opportunity to be heard, to examine
and cross-examine witnesses , and to introduce evidence pertinent to the issues. At
the hearing , the parties stipulated that the Trial Examiner could consider the entire
record adduced in the temporary injunction proceeding instituted by the Regional
Director against the Respondent in the United States District Court for the Eastern
District of Pennsylvania pursuant to Section 10(1) of the Act, with the same force
and effect as though the record therein was adduced before the Trial Examiner.'
The General Counsel and the Respondent have filed briefs which I have fully
considered.
Upon the entire record in the case, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The complaint alleges that for the calendar year 1959, the Company , an operator
of retail shoe stores in the city of Philadelphia , Pennsylvania , purchased goods
1On April 7, 1960, the district court issued a temporary restraining order, and on
April 14, 1960, issued a temporary injunction enjoining the Respondent from "continuing
their current picketing of Morgan Shoe Company" and from distributing leaflets at the
latter's premises for the objects proscribed in Section 8(b) (7) (B) of the Act, "pending
the final disposition of the matters involved pending before the . . . Board." 46 LRRM
2045.
DISTRICT 76, RETAIL, WHOLESALE & DEPT. STORE UNION 1341
valued in excess of $50,000 from outside the State of Pennsylvania, and had gross
sales of more than $500,000. In support of this allegation, the Company's certified
public accountant testified that for the year 1959, the actual purchases of goods
from outside the State of Pennsylvania were $69,386.56. He testified further that
during the calendar year 1959, the Company operated six retail stores and that the
gross sales were $404,880.67. Two of the six stores were newly opened in 1959 and
one was closed during the year. The gross sales of each of the six stores during
1959 were as follows: (1) at 1100 Columbia Avenue, from January 1, until the
store closed in September 1959, $49,551.16; 2 (2) at Kensington Avenue, from
July 20 when the store opened, $47,484.83; (3) at Darby, from September 11, 1959,
when the store opened, $22,390.06; (4) at 3609 Germantown Avenue, $101,551.22;
(5) at 2615 Germantown Avenue, $101,528.47; and (6) at Point Breeze Avenue,
$82,374.93. Thus, it would appear at first blush that although the Company's
out-of-State purchases during 1959 were sufficient to establish the Board's statutory
jurisdiction, its sales for that period were less than the $500,000 alleged in the com-
plaint and less than the minimum established by the Board for the assertion of
jurisdiction over retail enterprises .3
The General Counsel urges, however, that the business done by the two stores
which the Company opened during the year 1959 should be projected "backward"
for the full year 1959, and added to the actual gross sales of the other four stores
(including the store which closed during the year), and when thus computed, the
Company's gross sales for 1959 amount to $515,220.69 4 The General Counsel
concedes in his brief that unless the business done at the store which closed is in-
cluded in the computation of the Company's annual volume of business, "the gross
sales are less than $500,000 annually." 5 The Respondent on the other hand, rely-
ing on a statement in the Board's Twenty-first Annual Report, page 12, contends
that the use of the projection method for determining whether an employer's annual
business meets the Board's minimum standards for assertion of jurisdiction is
limited to new enterprises, "no part" of which have been in existence for a full
year, and since the Company is not in that category, the use of projection to deter-
mine the Company's annual volume of business is improper. The issues thus
presented are: (1) Whether it is proper to project the business done during 1959
at the Company's two new stores to determine their annual gross sales, and (2),
assuming that such projection is proper, whether it is proper to project backward
as urged by the General Counsel and thus to count the business done at the closed
store in determining whether the Company's annual gross sales meet the Board's
jurisdictional standards.
Although the Company's actual gross sales for 1959 were less than the $500,000
alleged in the complaint, I do not regard that fact as diapositive of the jurisdictional
issue herein. The Board has frequently projected available commerce date to com-
put an employer's annual volume of business.6 Moreover, contrary to the contention
of Respondent, the Board has not limited the use of the projection method of
computation to cases where "no part" of the employer's business has been in ex-
istence for a full year.? Accordingly, I agree with the General Counsel that the
projection of the business done by the two new stores is a reasonable method under
the Board's decisions to determine the annual gross sales of these stores.
However, I do not agree that the addition of the projected business of the two
new stores to the actual business done by the other four stores (including the closed
store) is a proper basis for establishing the Company' s annual volume of business.
In its decisions, the Board has utilized the projection method as a basis for con-
'This store was closed because it was taken over by the Philadelphia Redevelopment
Authority to make way for the reconstruction of the area in which the store was located.
S Carolina Supplies and Cement Co , 122 NLRB 88, 89
4 The accountant testified that the projected annual gross sales for the Kensington
Avenue store would be $106,908, and for the Darby store. $78,209 60. He arrived at
these figures by dividing the actual gross sales of each of the two new stores by the num-
ber of months it was in operation during 1959 and multiplying the monthly average thus
arrived at by 12 My own addition of the figures based on this method of computation
shows the total as $515,123 38
5If the business done at the two new stores is projected, the annual volume of business
of the five stores which the Company still operates would be $465,572.22.
6 L. Azarow, et at ., d/b/a C & A Lumber Company, 91 NLRB 909; General Seat and
Back Mfg. Corp, 93 NLRB 1511; National Association of Broadcast Engineers and
Technicians, etc, 95 NLRB 1470.
' See Segiiim Lumber and Supply Company, 123 NLRB 1097 Hawkins-Hawkins, Inc.,
121 NLRII 740; Fairmont Construction Company, 95 NLRB 969
1342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cluding that "there is a reasonable expectation that the Company under consideration
will in a period of 12 months attain the minimum jurisdictional requirement." 8
Since as aforestated, one of the other four stores was closed in 1959, there can be
no "reasonable expectation" that its 1959 sales will be repeated and no reasonable
basis for considering the business done at the closed store in any computation of
the Company's anticipated annual volume of business for 1960. There was no
testimony in the record that the closed store would be reopened by the Company
when the Philadelphia Redevelopment Authority concluded its reconstruction work.
Indeed, the only testimony regarding the possibility that the closed store might be
reopened was that of the accountant, that an "offer was made to Mr. Morgan to
relocate at that location in the new store that they [the Redevelopment Authority]
were building." There was no testimony that the "offer" was accepted by the
Company, none regarding whether the Company had a legal commitment from the
Authority for a new store at its old location, and none as to when, if at all, such new
store would be reopened. In his brief (footnote 18) the General Counsel asserts
that the store in question would "be reopened in the future" and at page 9 asserts
that "it will reopen sometime in 1960," but these assertions are not supported by any
testimony in the record e
Moreover, I can find no support for counting the business of the closed store by
projecting "back" as urged by the General Counsel. No case has been cited by
him in which the Board has ever projected backwards nor has my independent
research uncovered any. Indeed, the very word "project" means "to throw or
cast forward," 10 the antithesis of the meaning which the General Counsel seeks to
apply to it. In short, at the time of the alleged unfair labor practices (April 1960),
the Company was operating only five stores. The anticipated volume of the business
of the Company in these five stores on a projected basis is $465,572.22,11 and thus
is still short of the minimum required by the Board for assertion of jurisdiction over
retail enterprises.12
In view of my findings and conclusions above, I do not reach or pass on the
unfair labor practices charged in the complaint.
For the foregoing reasons, and upon the basis of the foregoing findings of fact, I
make the following:
CONCLUSION OF LAW
The Company's operations do not meet the Board's standards for assertion of
jurisdiction over retail enterprises and it would not effectuate the policies of the
Act to assert jurisdiction in this case.
[Recommendations omitted from publication.]
8 General Seat and Back Mfg Corp., supra
8 At the reopened hearing herein on July 21, the General Counsel declined a proffered
opportunity to clarify the record regarding the possibility that the closed store might
reopen shortly.
1o Webster's New Collegiate Dictionary, p 675.
11 See footnote 5, supra
12 Caroluia Supplies and Cement Co., supra.
R. E. Smith and Florence B. Smith , a partnership , d/b/a South-
ern Dolomite and Ernest Powell, Montieth Pulver, and Emil
Adkins. Cases Nos. 10-CA-1347-1,12-CA-1347-2, and 12-CA-
1347-3. January 13, 1961
DECISION AND ORDER REMANDING CASE TO THE
TRIAL EXAMINER
On June 27, 1960, Trial Examiner George J. Downing issued his
Intermediate Report in the above-entitled proceeding, recommending
that the complaint be dismissed for the reason that the Respondents
are not engaged in commerce within the meaning of the Act, as set
129 NLRB No. 159.