Passmore Supply Co.

National Labor Relations Board - Board Decisions

Jul 14, 1960

128 N.L.R.B. 50 (N.L.R.B. 1960)

50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Passmore Supply Company and Highway Truck Drivers and
Helpers, Local 107, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, Inde-
pendent. Case No. 4-CA-1954. July 14, 1960
DECISION AND ORDER
On January 11, 1960, Trial Examiner Louis Plost issued his Inter-
mediate Report in the above -entitled proceeding , finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter , Respondent filed excep-
tions to the Intermediate Report and a supporting brief. On March
30, 1960, the Board issued an order directing that the record be re-
opened and that a further hearing be held for the purpose of
receiving additional evidence on the question of the Board 's statutory
jurisdiction.
On May 19, 1960, Trial Examiner Plost issued his Report on Order
Remanding Proceeding , a copy of which is also attached hereto, in
which he made additional findings of fact and reaffirmed his original
conclusions of law with respect to the question of jurisdiction . There-
after, the Respondent filed exceptions to this report.
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 Bean and Fanning].
The Board has reviewed the rulings of the Trial Examiner made,
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the Report on Order Remanding Proceeding, the
exceptions and brief , and the entire record in the case , and hereby
adopts the findings, " conclusions , and recommendations of the Trial
Examiner, to the extent consistent with our decision herein.
We agree with the Trial Examiner , for the reasons set forth herein-
after, that the Respondent violated Section 8 ( a) (1) and ( 3) of the
Act.
As set forth in the Intermediate Report, following the inception
of the Union 's attempts to organize Respondent 's employees , Respond-
ent's supervisor Edler interrogated union adherent Brown concerning
union activity and his participation therein, stating to Brown that
he had information that Brown was a union adherent and that the
1 We note and correct inadvertent errors in the Intermediate Report, where the Trial
Examiner incorrectly referred to Tuesday, June 2, as a Wednesday ; to Friday, the
regular payday , as the end of the pay period , and to 1 week ' s vacation as 2 weeks'
vacation
128 NLRB No. 7.
PASSMORE SUPPLY COMPANY 51
Respondent didn't "go for that." Brown thereupon asked Edler if
that meant he was fired. Without delay, Edler saw Pusey, Respond-
ent's president, and instructed Brown to see him. Pusey charged
Brown with being dissatisfied with his work and told him he thought
it was time he made a change. Although Brown denied he was dis-
satisfied with his work, Pusey insisted that he was dissatisfied and
that he should make a change. Pusey concluded his conversation with
Brown by saying : "You have a week's vacation coming, take that and
that will be it." Brown later received his pay through the day of his
conversation with Pusey, including 1 week's vacation pay.
On these facts, we find, contrary to the contention of the Respond-
ent, that Brown did not quit, but rather was discharged. We further
find that Brown was not discharged because of any dissatisfaction
with his work which was unrelated to his union activity; we note in
this connection that although Respondent was aware for some time
of Brown's alleged dissatisfaction, it took no steps to terminate his
employment until after the advent of union activity and Brown's
participation therein. We find, rather, particularly in view of the
timing of the Respondent's discharge of Brown in relation to the
advent of the Union's organizational efforts, and in relation to Re-
spondent's interrogation of Brown concerning such activity, and
Respondent's patent attempt to equate union activity with job dis-
satisfaction, that the Respondent terminated Brown because of his.
union activity. By such conduct, therefore, the Respondent has dis-
criminated against Brown in violation of Section 8(a) (3) and (1)
of the Act. As the Respondent's interrogation of Brown concerning
his participation in union activity was directly related to the dis-
crimination against him, such interrogation clearly violated Section
8 (a) (1) of the Act, and we so find?
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Passmore Supply
Company, Avondale, Pennsylvania, its officers, agents, successors, and
assigns, shall :
1. Cease and desist from :
(a) Interrogating its employees concerning their union interest or
affiliation in a manner constituting interference, restraint, or coercion,
in violation of Section 8 (a) (1) of the Act.
2 Because a discriminatory discharge goes to the very heart of the Act and the record
reflects a purpose by unlawful means likely to be executed in the future to thwart
freedom of choice by employees as to representation by any labor organization, we adopt
the recommended order of the Trial Examiner that the Respondent cease from in any
manner interfering with the rights of employees under Section 7 of the Act N L.R B v.
Entwistle Manufacturing Co, 120 P. 2d 532, 536 (CA 4).
52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Discouraging membership of its employees in Highway Truck
Drivers and Helpers, Local 107, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, Independ-
ent, or any other labor organization, by discriminating in regard to
their hire of tenure of employment or any term or condition of
employment.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, or assist labor organizations, including the above-named labor
organization, to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or protection
or to refrain from any or all such activities, except to the extent that
such right may be affected by an agreement requiring membership
in a labor organization as a condition of employment as authorized
in Section 8(a) (3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Oscar D. Brown reinstatement to his former or sub-
stantially equivalent position without prejudice to his seniority or
other rights and privileges previously enjoyed and make him whole
in the manner set forth in the section, of the Intermediate Report
entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or its
agents for examination and copying, all payroll records, social secu-
rity payment records, timecards, personnel records and reports, and
all other records necessary or appropriate to analyze the amount of
backpay and other benefits due and the rights of employment under
the terms of this Order.
(c) Post at its plant at Avondale, Pennsylvania, copies of the notice
attached hereto marked "Appendix." 3 Copies of such notice, to be
furnished by the Regional Director for the Fourth Region, shall, after
being duly signed by an authorized representative of the Respondent,
be posted immediately upon receipt thereof, and be maintained by it
for a period of 60 consecutive days thereafter in conspicuous places,
including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that such
notices are not altered, defaced, or covered by any other material.
(d) Notify the said Regional Director, in writing, within 10 days
from the date of this Order, what steps have been taken to comply
herewith.
3In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
PASSMORE SUPPLY COMPANY
APPENDIX
NOTICE TO ALL EMPLOYEES
53
Pursuant to a Decision and Order of the National Labor Relations
Board , and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that :
WE WILL NOT discourage membership in Highway Truck
Drivers and Helpers, Local 107, International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and Helpers of America,
Independent, or any other labor organization , by discriminating
in regard to the hire or tenure of employment or any term or con-
dition of employment of our employees.
WE WILL NOT interrogate our employees concerning their union
interest or affiliation in a manner constituting interference, re-
straint, or coercion , in violation of Section 8 (a) (1) of the Act.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the right of self-organiza-
tion, to form labor organizations , to join or assist Highway Truck
Drivers and Helpers, Local 107, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America,
Independent, or any other labor organization, to bargain collec-
tively through representatives of their own choosing, or to engage
in concerted activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any or all such
activities except to the extent that such right may be affected by
an agreement requiring membership in a labor organization as
authorized in Section 8 (a) (3) of the Act, as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
WE WILL offer Oscar D. Brown immediate and full reinstate-
ment to his former or substantially equivalent position as truck-
driver without prejudice to his seniority and other rights and
privileges previously enjoyed and make him whole for any loss
of pay suffered as a result of our discrimination against him.
All our employees are free to become, remain , or refrain from be-
coming or remaining members of any labor organization , except to
the extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment as
authorized in Section 8(a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
PASSIIORE SUPPLY COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by any other material.
577684-61-vol. 128-5
54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT
STATEMENT OF THE CASE
It having been charged on June 10, 1959, by Highway Truck Drivers and Helpers,
Local 107, International Brotherhood of Teamsters , Chauffeurs , Warehousemen and
Helpers of America, Independent , herein called the Union , that Passmore Supply
Company, herein called the Respondent , has been engaging in and is engaging in
unfair labor practices affecting commerce , as set forth and defined in the National
Labor Relations Act, as amended , 61 Stat . 136, herein called the Act , the General
Counsel of the National Labor Relations Board , herein called the Board , on behalf
of the Board by the Regional Director for the Fourth Region, issued a complaint
and notice of hearing pursuant to Section 10(b) of the Act, and Section 102.15 of
the Board 's Rules and Regulations , Series 7, as amended , dated August 6, 1959,
alleging that the Respondent had engaged in and was engaging in unfair labor
practices within the meaning of Section 8 ( a)(1) and ( 3) and Section 2(6) and
(7) of the Act.'
Copies of the complaint and a notice of hearing were duly served on the
Respondent.
The complaint , with respect to the unfair labor practices , alleged that:
On or about June 2, 1959 , the Respondent, through its president and general
manager, George C. Pusey, and through its supervisor and agent , George H.
Edler, did interfere with , restrain and coerce employees , by interrogating Oscar
D. Brown concerning his union activities , sympathies , and affiliations.
On or about June 2, 1959 , the Respondent discharged its employee , Oscar D.
Brown, and has at all times since June 2, 1959, failed and refused to reinstate
him . . . for the reason that he joined or assisted the Union or engaged in
other concerted activities for the purposes of collective bargaining or other
mutual aid or protection of employees.
The answer , filed by the Respondent August 13, 1959, denied that it had engaged
in any of the alleged unfair labor practices.
Pursuant to notice a hearing was held before Louis Plost, the duly designated
Trial Examiner , at Philadelphia , Pennsylvania , on October 19, 1959. The parties
were all represented by counsel , herein referred to in the names of their principals.
The parties participated in the hearing and were afforded full opportunity to be
heard, to examine and cross -examine witnesses , to introduce evidence bearing upon
the issues , to argue orally, and to file briefs and/or proposed findings of fact and
conclusions of law with the Trial Examiner . No oral arguments were presented.
Briefs have been received from the Respondent and from the General Counsel.
Upon the entire record in the case, and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The parties stipulated:
The Respondent is a corporation , duly organized and existing by virtue of
the laws of the State of Delaware and maintains its principal place of business
at Avondale , Pennsylvania, where it is engaged in the retail sale of ice, coal,
feed, fertilizers , lumber, and building materials . During the calendar year
1958, Respondent's gross volume of business exceeded the sum of $ 500,000.
Respondent has been at all times herein mentioned , and is now an Employer
engaged in commerce within the meaning of Section 2, Subsections ( 6) and (7)
of the Act.
II THE ORGANIZATION INVOLVED
Highway Truck Drivers and Helpers, Local 107, International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and Helpers of America , Independent, is a
labor organization within the meaning of Section 2 ( 5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The Discriminatory Discharge of Oscar D. Brown
Oscar D. Brown was employed as a truckdriver by the Respondent on April 9,
1958. He was employed to operate the Respondent 's largest truck , the truck being
" The complaint was signed by Bernard Samoff, Acting Regional Director.
PASSMORE SUPPLY COMPANY 55
thereafter designated as "Brown's" on the Respondent's bulletin board and except
for two occasions Brown was the only employee to operate this truck during the
period of his employment.
Brown testified that: He contacted the Union sometime in May 1959; thereafter he
attended a meeting at the Union's hall in Wilmington, Delaware, on May 27, 1959,
which had been called by the Union (Charging Party) for the purpose of organizing
the Respondent's drivers; prior to the meeting he informed his fellow employees of
it and urged their attendance. Some of his fellow employees did attend the
meeting.
George C. Pusey, the Respondent's president, testified that he has managed the
Respondent's business for 20 years and in response to a question regarding the
number of drivers the Respondent normally employed answered, "I think as high
as 7 or 8."
Brown further testified that on June 2, 1959 (the day fell on Tuesday, the Union's
meeting had taken place the preceding Wednesday), he received an order "just
before noon" to prepare a delivery for Centerville, Delaware, but that after his truck
was loaded he was told by Howard Edler (stipulated to be a supervisor) not to
make the delivery but to turn the truck over to another employee, which he did,
continuing on other work than driving the rest of the day; no reason was given
Brown for the action; at 5 p.m., after Brown had "checked out," he was called by
Edler to "come over to the steps":
He sat down on the steps , and I stood at the bottom.
And he says, "What's this I hear about the union?" And I says, "What do
you mean?"
And he says, "I have information that you're the head of trying to get the
union in here " And I told him I didn't know as I was the head of it.
And he says, "You know we don't go for that around here." And I said,
"Does that mean that I'm fired?"
And when I asked him if it meant that I was fired he said, "I didn't say
that." Or in that order, he said, "I can't say that."
And he told he to wait a minute. He went over to Mr. Pusey's office.
Edler was not called by the Respondent. Brown's above-cited undenied testimony
is fully credited by the Trial Examiner.
According to Brown:
And he came out and told me to go in Mr. Pusey's [George C. Pusey, the
Respondent's president] office. And I went in and Mr. Pusey says, "I hear
you're dissatisfied around here. I think it's time for you to make a change."
And I asked him what he meant. He says, "Well, you've been complaining
about your trips, and your work," and he says, "I just think it's time for you to
make a change."
Brown further testified he answered Pusey that he was not dissatisfied with his
work but was with the salary:
And Mr. Pusey says, "Well, you've been doing quite a bit of complaining."
He says, "It seems that you're dissatisfied. I think you should make a change."
And I asked him what this was that Howard talked to me about the union.
And he says, "I don't know. But," he says, "you're still dissatisfied. It's time
you make a change."
So I said to him-we had two weeks' agreement when he hired me, that I
would have a two-weeks' notice. He says, "Well, take tomorrow off, see if
you can get another job, and come back."
Pusey closed the conversation, which lasted "approximately five minutes" with
the statement: "You have a week's vacation coming, take that and that will be it."
When Brown received his pay it was ended with Wednesday, June 2,- the day of
the above-related conversation. The regular pay period ended on Friday. Brown
was paid for the 2-week vacation period.
President Pusey's account of the conversation between Brown and himself on
June 2 is somewhat different from Brown's version. According to Pusey, at 5 p.m.
Edler "just opened the door" of Pusey's office and stated that Brown wished to talk
to him (Pusey); Brown then entered and:
He said, "What is this about me being the ringleader of a group to join the
union?" I said, "I know nothing about it." I said, "I thought that if you were
interested in joining the union-or if the union had talked to you, you would
come to talk to me about it." And he didn't answer that remark.
56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent argues that the record contains no "direct evidence" that Pusey
had knowledge of the Union's activities among the Respondent's employees. How-
ever, Pusey's testimony that he told Brown he "knew nothing about" Brown's activities
on behalf of the Union and followed this with the statement that if Brown had be-
come interested in a union "I thought .. . you would come to me to talk about it,"
if not disclosing direct evidence of knowledge by Pusey, surely does more than
point to such knowledge. Edler's undenied knowledge of Brown's union activity
which is chargeable to the Respondent, clearly shows the Respondent's knowledge
,of Brown's interest in the Union's organization of the Respondent's employees.
President Pusey further testified that the conversation continued as follows:
I said, "Well, it's come to my attention that you have been giving your
supervisor a hard time about making some of these Philadelphia trips, other
trips."
And I says, "You remember the conversation you and I had when you had
been here a year, you were telling me then you were tired of bucking the
Philadelphia traffic. And that you asked my advice about buying a truck,
going in business for yourself."
So I said, "Why don't you just quit, if you're dissatisfied?"
TRIAL EXAMINER: Anything else in that conversation?
The WITNESS: Well, then, he raised the question about whether he could
come back to work the next day. And I says, "Well, it's all right with me if you
want to take tomorrow o$ and look for another job." [Emphasis supplied.]
With respect to his desire to purchase a truck, Brown testified that in the "early
sprang" of 1959 he was hauling fertilizer and asked Pusey if the Respondent would
give him this business were he to buy a truck and hire a driver to operate it; how-
ever, Pusey advised against such a venture by Brown and it was not made.
Pusey testified that:
My understanding of the conversation was that he was considering quitting us,
buying a truck of his own, and driving it.
He further testified: "I told him I didn't think I would buy it if I were him," but that:
"I told him if he bought the truck and went into that business we'd give him some
of our work."
Brown testified he had spoken to Edler "a couple of times" regarding salary,
mentioned the "mess up in the city" regarding Philadelphia traffic to Edler, but
never told the Respondent he intended to quit or that he was dissatisfied with his job.
Brown also testified that in April 1959, during a strike on the docks at Philadelphia,
freight was being diverted to Baltimore and he was sent for a shipment of nails
unloaded at Baltimore but he found that "the nails wasn't there" and accordingly
made two telephone calls to Edler in which:
I said something about the pier men there, it was the time when they had the
strike, and everything was on the pier. And I remember saying something about
they're running me back and forth from one building to the other.
The manner of Brown's cross-examination indicated clearly that the Respondent
sought to turn these two telephone calls into evidence of dissatisfaction with his
job by Brown, although Brown's testimony was not disputed.
The Respondent makes much in his argument of the fact that at no time did
Pusey actually discharge Brown. For that matter at no time did Brown state that
he quit. Upon all the evidence it is the considered opinion of the Trial Examiner
that despite an evident attempt to slant his testimony in the Respondent's favor
President Pusey merely succeeded in substantially corroborating Brown's account
of the June 2 meeting between Pusey and Brown.
On the entire record and from his observation of the two men on the witness stand,
the Trial Examiner credits Brown, and finds his account of the June 2 meeting
to be accurate.
President Pusey further testified that "the following Thursday" Brown called
at his office. According to Pusey:
Q. (By Mr. Bonney.) Tell us what he said when he came to see you.
A. He came in and he said that he wanted to know whether he had been fired,
or whether he quit. I says, "Brownie, it's my understanding you quit. Why?"
He said, "Well, I want to apply for unemployment compensation," or insurance,
whatever it is.
And I said, "Well, I'm sorry, it's my understanding you quit." He turned
around and walked out.
PASSMORE SUPPLY COMPANY 57
Concluding Findings
The Trial Examiner is convinced and finds that on all the circumstances of the
case it is clear that the Respondent discharged Oscar D. Brown on June 2, 1959.
The Trial Examiner further finds that Foreman Edler's inquiry and remarks to
Brown on June 2 as hereinabove found constitute unlawful interrogation and threat.
Final Conclusion
Upon the entire record and from his observation of the witnesses the Trial
Examiner finds that by discharging Oscar D. Brown as herein found, the Respondent
did discourage and is discouraging membership in a labor organization by discrimi-
nating in regard to hire and tenure of employment and terms and conditions of
employment, and by said acts and conduct did engage in and is engaging in unfair
labor practices within the meaning of Section 8(a) (3) of the Act, and by said acts
and conduct did interfere with, restrain, and coerce and is interfering with, restrain-
ing, and coercing its employees in the exercise of the rights guaranteed in Section 7
of the Act, and did thereby engage in and is thereby engaging in unfair labor practices
within the meaning of Section 8(a) (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The Respondent's activities, set forth in section III, above, occurring in connection
with the Respondent's operations described in section 1, above, have a close, intimate,
and substantial relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices
it will be recommended that it cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of the Act.
Having found that the Respondent has discriminated in regard to the hire and
tenure of employment of Oscar D. Brown because of his membership in and
activities on behalf of the Union, it will therefore be recommended that the Re-
spondent offer him immediate and full reinstatement to his former or substantially
equivalent position, without prejudice to his seniority or other rights and privileges,
sand that he be made whole for any loss of pay he may have suffered by reason of
the discrimination against him, by payment to him of a sum of money equal to that
which he would normally have earned as wages from the date of the discrimination
to the date of the Respondent's offer of reinstatement, less his net earnings during
such period.2 The backpay shall be computed in the manner established by the
Board,3 and the Respondent shall make available to the Board its payroll and other
records to facilitate the checking of amounts due.
The preventive purposes of the Act will be thwarted unless the recommendations
are coextensive with the threat contained in violations of the Act herein found. It
will therefore be recommended that the Respondent cease and desist from infringing
in any manner upon the employees' rights guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Passmore Supply Company, Avondale, Pennsylvania, is engaged in commerce
within the meaning of the Act.
2. Highway Truck Drivers and Helpers, Local 107, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent, is
a labor organization within the meaning of the Act.
3. By discriminating in regard to the hire and tenure of employment of Oscar D.
Brown, the Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(3) of the Act.
4. By such discrimination the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(1) of the Act.
5 The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication ]
2 Crossett Lumber Company, 8 NLRB 440
BF. W Woolworth Company, 90 NLRB 289
58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
REPORT ON ORDER REMANDING PROCEEDING TO REGIONAL DI-
RECTOR FOR STIPULATION OF FACTS OR FOR FURTHER HEARING
The Board's Order opens:
On January 11, 1960, Trial Examiner Louis Plost issued an Intermediate
Report in the above-entitled proceding in which he concluded that the Respondent
is engaged in commerce within the meaning of the Act. The Respondent filed
an exception thereto. The Board having duly considered the matter.
IT IS HEREBY ORDERED that the record in this proceeding be, and it hereby is,
reopened and that a further hearing be held before Trial Examiner Louis Plost
for the purpose of receiving additional evidence on the question of the Board's
statutory jurisdiction; I
Pursuant to notice a hearing on the Board's Order was held before Trial Examiner
Louis Plost at Philadelphia, Pennsylvania, on April 20, 1960. The parties were all
represented by counsel, herein referred to in the names of their principals. The
parties participated in the hearing and were afforded full opportunity to be heard,
to examine and cross-examine witnesses, to introduce evidence bearing upon the
issues, to argue orally, and to file briefs and/or proposed findings of fact and conclu-
sions of law with the Trial Examiner. Oral argument was presented by the General
Counsel. The parties all waived the right to file briefs.
George C. Pusey the Respondent's president and general manager, testified that:
During fiscal year 1959, the Respondent's total sales were $1,563,093.90; it shipped
goods from its plant at Avondale, Pennsylvania, to points located outside the Com-
monwealth of Pennsylvania having a dollar value of approximately $70,000; and
it brought goods from outside Pennsylvania for use in Pennsylvania, having a dollar
value in excess of $50,000.
In his oral statement the General Counsel pointed out that the transcript of the
original hearing 2 contained 10 references to shipments made by the Respondent from
Pennsylvania to points outside the State, or vice versa, citing page references in the
original transcript.
Upon the entire record in the case the Trial Examiner finds that:
The Respondent is a corporation, duly organized and existing by virtue of the laws
of the State of Delaware, and maintains its principal place of business at Avondale,
Pennsylvania, where it is engaged in the retail sale of ice, coal, feed, fertilizers,
lumber, and building materials. During the calendar year 1959 the Respondent's
gross volume of business was $1,563,093.90 of which approximately $70,000 in value
was shipped to points outside Pennsylvania, and in excess of $50,000 in value came
to it from outside Pennsylvania. Respondent has been at all times herein mentioned,
and is now, an employer engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
'The above-quoted language can leave the impression that the Respondent filed objec-
tions to the "commerce" findings made by the Trial Examiner in his original report The
Trial Examiner respectfully points out that such an impression would be erroneous. As
found in the original report the Respondent stipulated the "commerce" facts and further
that it was engaged in commerce within the meaning of the Act In its exceptions to the
Trial Examiner's original report the Respondent did not raise any jurisdictional question.
The question of jurisdiction is raised by the Board under its ruling in James D. Jackson,
d/b/a Jackson's Party Service, 126 NLRB 875.
2 This transcript consisted of 85 pages.
Nutley Sun Printing Co., Inc., Frank Orechio and Wall Street
Printing and Stationery Corp . and Newark Typographical
Union Local No. 103 . Case No. AO 10. July 14, 1960
ADVISORY OPINION
This is a petition filed by Newark Typographical Union Local No.
103, herein called the Petitioner, pursuant to Section 102.98 of the
Board's Rules and Regulations, praying for an advisory opinion as
128 NLRB No. 13.