Jos. McSweeney & Sons, Inc.

National Labor Relations Board - Board Decisions

Jan 24, 1958

119 N.L.R.B. 1399 (N.L.R.B. 1958)

JCS. McSWEENEY & SONS, INC. 1399
to the conduct of the election or conduct affecting the results of
the election, which shall contain a short statement of the reasons
therefor. [Emphasis supplied.]
The Regional Director found, and we agree, that the Employer failed
to meet the requirement in this section that objections must contain
a statement of reasons. The Board has held that objections to an elec-
tion, to satisfy this requirement, must allege "facts which prbrna facie
would warrant setting aside the election," and not "merely a general
conclusive allegation of interference with the election."' The Em-
ployer's objection contains no description of the conduct in question,
but merely alleges, in substance that conduct occurred which inter-
fered with the election Accordingly, as the objection filed by the
Employer is merely conclusory and therefore fails to' comport with
the Board's Rules and Regulations, we find that it is not properly
before the Board for consideration on the merits, and it is hereby
dismissed.3
As the tally of ballots shows that the Petitioner has received a
majority of the valid ballots cast in the election, we shall certify it
as the exclusive bargaining representative of the employees in the
appropriate unit
[The Board certified United Packinghouse Workers of America,
AFL-CIO, as the designated collective-bargaming representative of
the employees of the Employer in the unit heretofore found
appropriate.]
'Don Allen Midtown Chevrolet, Inc, 113 NLRB 879, of Hughes Tool Company, 119
NLRB 739
3 We find lacking in merit the Employer 's contention that the Regional Director was
estopped from relying on such lack of specificity because of his failure to notify the
Employer thereof
Jos. McSweeney & Sons, Inc.' and Amalgamated Meat Cutters
& Butcher Workmen of North America, Local 272, AFL-CIO,
Petitioner. Case No. 5-RC- 278. January 24,1958
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 Louis S. Wallerstein, 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 Rodgers and Bean].
1 The Employer 's name appears as corrected at the hearing
119 NLRB No 174
1400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in this case, the Board finds:
1. The Employer contends that its volume of business is insufficient
to meet the Board's jurisdictional standards on the grounds that (a)
it "sold" less than $50,000 worth of goods outside the State in 1956;
(b) its last fiscal, and not calendar, year should be used in computing
its total sales, and that the latter do not meet the Board's standards;
(c) and in any event, it has recently ceased selling goods outside the
State.
The Employer is located at Richmond, Virginia, and is engaged in
the manufacture and sale of sausages, hams, and bacon. In 1956 its.
total sales were $1,987,000 and its total purchases were $1,409,452.
The parties stipulated that the Employer does not meet the Board's
indirect outflow, direct inflow or indirect inflow jurisdictional stand-
ards, but the Petitioner contends, and the Employer denies, that the
Employer's direct outflow is of sufficient volume for the Board to^
assert jurisdiction herein.
As to (a), the Employer uses a "cash receipts" method for the sale
of its byproducts (grease, hides, and tankage) for the purposes of
Federal and State income taxes, under which no sales or earnings are
computed until payment has actually been received by the Employer.'
For the calendar year 1956, the Employer shipped,' and received pay-
ment for, $49,979 worth of byproducts outside the State. In addition,.
the Employer shipped $2,737 worth of byproducts out of State in
December 1956, but was not paid therefor until January 1957. The
Employer contends that the Board should use its cash receipts method
in computing its sales and that therefore its volume of business does
not meet the Board's jurisdictional standards. We find no merit in this
contention.
It is the annual rate of shipment or flow of goods in interstate com-
merce, rather than the rate of flow of payments for such goods, that
determines the relative impact of an employer's operations on com-
merce. Section 1 of the Act, setting forth its policies, speaks in terms
of removing restraints upon the flow of "goods from or into the
channels of commerce." The applicable jurisdictional standard, itself,
provides for the assertion of jurisdiction over enterprises which an-
nually "ship" out-of-State goods valued at $50,000 or more.4 The
Employer would have us construe "ship" to read "receive payment
for goods shipped." We see no warrant for such a construction.
2 The Employer uses the accrual method for the sale of its major products-sausages;.
hams, and bacon.
8 The record reflects merely that the Employer received this amount in 1956 in payment
for its byproducts . However, in the absence of any evidence to the contrary , we assume
that these goods were all shipped in 1956, and not that part of them were shipped during
1955, but paid for in 1956, as the Employer contends.
4 Jonesboro Grain Drying Cooperative , 110 NLRB 481, 483.
JOS. McSWEENEY & SONS, INC. 1401
As to (b), the Employer asserts that the Board should use the Em-
ployer's last fiscal year,' September 1, 1956, to August 31, 1957, and
not the calendar year 1956 for purposes of determining jurisdiction.
We find no merit in this assertion.
It is sufficient that the yearly period proximate to the filing of
this representation petition establishes that the Employer's opera-
tions meet the Board's jurisdictional requirements.6
As to (c), the Employer contends that the Board should decline
jurisdiction on the ground that about 6 weeks before the hearing'
the Employer ceased doing business with 2 companies which were
its only out-of-State customers, and thus will not be engaged in inter-
state commerce in the future. However, the Board, in applying its
.jurisdictional standards, uniformly relies on the past experience of
an employer rather than its future operations. To rely, as the
Employer would have us do, on the employers' predictions as to their
future operations would invite speculation by them as to matters
within their peculiar knowledge. We do not believe that such a
policy would be administratively feasible or desirable where, as here,
commerce data for a recent annual period is available.'
Accordingly, as the Employer shipped over $50,000 worth of
goods outside the State in 1956, we find that the Employer is engaged
in commerce and that it will 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. The following employees of the Employer constitute a unit
:appropriate for the purposes of collective, bargaining within the
meaning of Section 9 (b) of the Act: 10
All production and maintenance employees at the Employer's
Richmond, Virginia, plant, including the shipping and receiving
'department employees, truckdrivers, and helpers, but excluding all
,office clerical employees, guards, and supervisors as defined in the
Act.
[Text of Direction of Election omitted from publication.]
5 The Employer maintains its records on a fiscal basis.
OF. M. Reeves and Sons, Inc., 112 NLRB 295, footnote 1. The petition herein was filed
on July 19, 1957, 1i/ months prior to the close of the fiscal year that the Employer would
,have the Board use.
7 This would be approximately 2 weeks after the petition herein was filed.
Aroostook Federation of Farmers, Inc., 114 NLRB 538.
Jonesboro Grain Drying Cooperative, supra.
au The unit conforms to the stipulation of the parties.