Felsway Shoe Corp.

National Labor Relations Board - Board Decisions

Dec 16, 1954

110 N.L.R.B. 1914 (N.L.R.B. 1954)

1914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Employer in this case sells fertilizer valued at about $135,000
to three firms, each of which sells over $1,000,000 in farm produce to
out-of-State purchasers. Prior to the actual shipment of the produce,
in the case of one of these firms (Namimatsu Farms), the produce is
prepared for marketing by a packingshed operator. It is then packed
and shipped by the packingshed operator-all these services being
performed for Namimatsu on a commission basis. On these facts, my
colleagues dismiss the case.
Apparently, this Employer is subject to the revised standard as to
"indirect outflow." I shall not burden this opinion with the complex
entirety of that standard. In pertinent part, however, it requires that
an employer, to be subject to the Act, must furnish goods or services
valued at $100,000 or more to certain other employers who "directly
utilize" these goods or services in their "products, services, or proc-
esses." The Employer to whom these goods or services are rendered
must, in turn, "produce or handle goods" in the value of $50,000 or
more and ship such goods out of State. I assume my colleagues con-
sider that because the packingshed operator performs the physical op-
erations necessary to market the produce, the grower is no longer di-
rectly engaged in interstate commerce. This utterly unrealistic point
of view completely ignores the facts. The growers, which this Em-
ployer supplies, raise produce for shipment and consumption in other
States. They do not grow their produce for sale to the packingshed,
but for sale in other States to other purchasers. The mere fact that
another party, for a commission, performs some of the labor involved
in this operation does not in any way change the essential nature of
this clear example of commerce between and among the States. Un-
less, therefore, my colleagues also, against the experience of some hun-
dreds of years of farming practice, conclude that the Employer's fer-
tilizer is not "directly utilized" in the processes or products of the
growers, I can only conclude that this Employer meets even the re-
vised standards for jurisdiction and that it would effectuate the
policies of the Act to assert such jurisdiction.
MEMBER PETERSON took no part in the consideration of the above
Decision and Order.
FELSWAY SHOE CORPORATION , FORSYTHE SHOE COMPANY, INCORPO-
RATED, FORUM SHOE STORES, INCORPORATED (KY.), AND NERF CORPO-
RATION OF LOUISVILLE i and RETAIL CLERKS INTERNATIONAL ASSOCI-
ATION, AFL, PETITIONER. Case No. 9-RC-057. December 16, 1954
Decision and Order
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held on September 30, 1953, before
1 The Employer's name appears as amended at the hearing . The four corporations will
be referred to hereinafter as Felsway, Forsythe , Forum, and Nerf , respectively , and as the
Employer collectively.
110 NLRB No. 238.
FELSWAY SHOE CORPORATION 1915
Orville E. Andrews, hearing officer. On September 27, 1954, the
Board issued its order reopening the record for the taking of further
evidence, and remanding the case to the Region for the purpose of
further hearing. Such further hearing was held on November 2, 1954,
before the same hearing officer. The hearing officer's rulings made at
the hearings are free from prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
The Petitioner seeks to represent employees of Forsythe, Forum,
and Nerf in a single bargaining unit. Each company operates a single
retail shoe store in Louisville, Kentucky. The Employer contends
that it would not effectuate the policies of the Act for the Board to
assert jurisdiction in this matter.
Felsway is a Delaware corporation, maintaining its principal office
and place of business in New York City. Forsythe, Forum, and Nerf
are part of a chain of 23 corporations, each of which is a wholly owned
subsidiary of Felsway and operates a single retail shoe store. The
retail stores are located in a number of States. The annual gross sales
of the entire chain of retail stores amount to less than $5,000,000 and
consist entirely of local cash sales. None of the stores receives mer-
chandise valued at more than $350,000 annually, either directly or
indirectly, from outside the State in which it is located.
Felsway maintains offices and a warehouse in New York City. It
purchases shoes in a number of States and in turn ships to the sub-
sidiaries nearly all the merchandise used by them. Felsway does not
engage in manufacturing, nor does it appear that it makes any other
sales.
In Hogue and Knott Supermarkets,' we set forth standards to be
followed in determining whether jurisdiction should be asserted over
retail enterprises.' These standards provide for the assertion of juris-
diction over individual retail stores which have an annual direct in-
flow of at least $1,000,000, or an annual indirect inflow of at least
$2,000,000, or an annual direct outflow of at least $100,000, and for
the assertion of jurisdiction over multistate chains of retail stores or
integral parts thereof where the entire chain has annual gross sales
of at least $10,000,000. As the chain, of which the three retail stores
here involved are an integral part, does not meet the above test,4 and
as the retail stores do not themselves meet any of the individual store
standards, we find that it will not effectuate, the policies of the Act to
assert jurisdiction in this case and we shall dismiss the petition.
[The Board dismissed the petition.]
! 110 NLRB 543
s Although Felswav does not engage in retail business , it is the common warehouse and
,pnrchasing agent for the chain of retail stores, and the combined operation clearly con-
stitutes a retail enterprise.
'In computing the annual gross sales of the chain, we will include only retail sales.
Sales representing shipments of merchandise from Felsway to the subsidiaries are ex-
cluded, as such sales would otherwise be given effect twice