Man Products, Inc.

National Labor Relations Board - Board Decisions

Aug 9, 1960

128 N.L.R.B. 546 (N.L.R.B. 1960)

546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dispute, whether a strike or not, if, as in the present case , the objective of the
disputant union is a legitimate objective . The Trial Examiner therefore concludes
that the Respondent 's picketing of McJunkin's plant was not violative of Section
8(b) (4) (A) and also affirms his conclusion in the original Intermediate Report
that the Respondent's inducement and encouragement of Epperley's, Bell's, and
Smith's employees not to make pickups or deliveries at McJunkm's plant, was
similarly not a violation of Section 8(b) (4) (A).
[Recommendations omitted from publication.]
Man Products , Inc. and Local 1922, International Brotherhood
of Electrical Workers , AFL-CIO, Petitioner. Case No. 2-RC-
10505. August 9, 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 Haywood E. Banks, hearing
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 Boards finds :
1. The Employer is engaged in the manufacture and retail sale of
cellar doors and prefabricated garden sheds at its only plant and place
.of business at Glen Cove, Long Island, New York. During 1959, the
Employer's purchases, all of which were shipped to the Employer's
plant from points outside of the State of New York exceeded $50,000.
Total sales during 1959 amounted to approximately $29-2,000, of which
more than $100,000 were made, to points outside the State of New
York. Sales are effected either by salesmen of the Employer or
through mail orders placed in magazines and newspapers throughout
the United States. Delivery and installation of the Employer's prod-
ucts is carried out by independent contractors. Approximately 99
percent of all sales were made directly to homeowners and other ulti-
mate consumers.
It is apparent that the Employer's business is a single, completely
integrated enterprise, encompassing both the manufacture of its prod-
ucts and their sale, in large measure, to the ultimate consumers with-
out the intervention of a wholesaler. In dealing with its jurisdictional
problems, the Board has found it advisable not to exercise its juris-
diction to the fullest extent and, consistent with that policy, has
adopted limited jurisdictional standards for various phases of business
activity. Thus, it established, jurisdictional standards for clearly
retail enterprises,' enterprises other than retail,2 and combinations of
both.
3 Carolina Supplies and Cement Co., 122 NLRB 60.
s Siemons Mailing Service, 122 NLRB Si.
s Appliance Supply Company , 127 NLRB 310.
128 NLRB No. 66.
MAN PRODUCTS, INC. 547
The Board, however, has not had occasion to define its jurisdictional
policy in situations such as presented in the instant case where an em-
ployer's operation does not fall into any given pattern of business
activity. It is clear, of course, that the Employer's business has an
aspect of a retail enterprise because it sells to the ultimate nonbusiness
consumer. But it is also clear that in all other respects its activity
possesses elements of a nonretail manufacturing enterprise, concerned
with its sources of supply of raw material, its recruitment of em-
ployees with skills required in manufacturing or in handling material
other than at a purely retail lever, and its competition for such skills
with other nonretail enterprises in the labor market. In such situ-
ations, the Employer's activities also offer considerations for the asser-
tion of jurisdiction on the basis of the Board's nonretail standards.
Certainly, we do not find here the same problems which concerned the
Board and resulted in the establishment of an exclusive gross volume
test for retail enterprises.' At least, no persuasive reason is presented
why the assertion of jurisdiction over the Employer's type of business
should be gauged by its retail activity alone. We have, therefore,
decided that in cases involving enterprise's of this kind which consti-
tute a single integrated business the Board will assert jurisdiction if
the employer's operations meet either its retail or nonretail standards.
As the Employer has both direct inflow and outflow in excess of
$50,000 annually, we find that it will effectuate the policies of the Act
to assert jurisdiction herein.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.5
3. A question affecting commerce exists concerning the represen-
tation of employees of the Employer within the meaning of Sections
9(c) (1) and 2(6) and (7) of the Act.
4. The parties have stipulated that a unit of production and main-
tenance employees is appropriate, but disagree as to the unit placement
of one Carbutio, whom the Petitioner would include in the unit and
whom the Employer would exclude as a supervisor. The president of
the Employer, who works in the shop himself, testified that Carbutio
does not have the power to hire, fire, or effectively recommend such
action and that at least one other employee receives higher pay than
Carbutio. The record further indicates that Carbutio does no more
than relay the president's directions to the other employees. Since it
does not appear that he responsibly directs other employees in the
plant, we find that Carbutio is not a supervisor within the meaning of
the Act and we shall, accordingly, include him in the unite
* See Carolina Supplies and Cement Co , supra, at 89.
"The Employer refused to stipulate that the Petitioner is a labor organization. We find
that the Petitioner is a labor organization as it exists for the purpose of engaging in
collective bargaining with employees with respect to wages, hours, and other conditions
of employment.
6 United States C-ypsurn Company, 118 NLRB 20, 29.
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find that the following employees constitute a unit appropriate
for the purposes of collective bargaining within the meaning of Sec-
tion9(b) of the Act:
All production and maintenance employees at the Employer's Glen
Cove, Long Island, New York, plant, but excluding office clerical
`employees, salesmen, professional employees, guards, and all super-
visors as defined in the Act.
[Text of Direction of Election omitted from publication.]
MEMBER BEAN took no part in the consideration of the above Deci-
sion and Direction of Election.
Greenpoint Sleep Products and Local 601, Industrial Workers
Union, Petitioner . Case No. ?2RC-740. August 9, 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 Paul M. Hanlon, hearing
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 engaged in commerce within the meaning of the
Act.
2. The Petitioner and Intervenor, Local 601, Upholsterers Inter-
national Union of North America, AFL-CIO, are labor organizations
claiming 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 Sections
9(c) (1) and 2(6) and (7) of the Act.
Petitioner seeks a production and maintenance unit at the Employ-
er's Jersey City, New Jersey, plant. The parties agree as to the appro-
priateness of such unit. The Intervenor claims, however, that its con-
tract of January 7, 1960, with the Employer is a bar to the petition.
The Employer takes no position.
The Intervenor and the Employer executed a contract on August 28,
1957, which contained no automatic renewal provision and which ex-
pired by its own terms on August 28, 1959. In December 1959, Peti-
tioner conducted an organization drive, and, after obtaining author-
ization cards from the employees, approached the Employer for
recognition. On December 31, the Employer and Petitioner entered
into an agreement reading as follows :
Inasmuch as union local #601 Industrial Workers Union as
evidenced by union membership authorization cards represents
a majority of the workers employed by Greenpoint Sleep Prod-
128 NLRB No . 69. . I N .