Robert L. Bearrow

National Labor Relations Board - Board Decisions

Jul 20, 1965

153 N.L.R.B. 1505 (N.L.R.B. 1965)

ROBERT L. BEARROW 1505
warehouse mailroom who we find have a sufficient community of inter-
ests with the other employees in the warehouse unit, but exclude the
mailroom employees whose employment interests are allied with those
of employees at the main store.
The cashier and clerical employees: The parties stipulated to the
unit inclusion of the clerical employees at the warehouse except as to
the following, whom the Petitioner would exclude. The cashier checks
drivers in and out on c.o.d. deliveries, handles money collected on these
deliveries, and wraps and routes packages. One of the clerical employ-
ees in dispute works under the direction of the warehouse delivery
manager, typing, checking out drivers, keeping a count on packages,
and relieving the cashier. The two other clerical employees in dispute
work under the direction of the warehouse manager, processing mail
and sales checks and checking on merchandise transfers, misfilled
orders, and customer pickups and deliveries; they also York part time
in the returned goods and receiving rooms. We find that the cashier
and all three of these clerical employees, who spend part of their time
in an office but also spend considerable time in the warehouse area, are
essentially plant clericals, and, accordingly, we include them in the
unit."
We therefore find that 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:
All employees at the Employer's Atlanta, Georgia, warehouse,
including the garage employees and the mailroom employees who work
at the warehouse, the cashier, and all plant clericals, but excluding
supply department employees, the mailroom employees who work at
the main store, office clerical employees, main store drivers, main store
delivery employees, professional employees, guards, watchmen, and all
supervisors as defined by the Act.
[Text of Direction of Election omitted from publication.]
6 See Tyree's Inc ., 129 NLRB 1500, 1502
Robert L. Bearrow and Carpenters Local Union No. 1323 , Build-
ing and Construction Trades Council of Monterey County, Mon-
terey California and Paul Richards, Russ Hansen , Lee Thiltgen.
Case No. AO-86. July 20,1965
ADVISORY OPINION
This is a petition filed on June 7, 1965, by Robert L. Bearrow, herein
called the Petitioner, for an Advisory Opinion in conformity with
153 NLRB No. 136.
796-027-66-v of 153-90
1506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sections 102.98 and 102.99 of the National Labor Relations Board's
Rules and Regulations, Series 8, as amended. Thereafter, by letters
dated June 16 and 24, 1965, Carpenters Union No. 1323, Building and
Construction Trades Council of Monterey County, Monterey, Califor-
nia, herein called the Union, filed opposition to the petition.
In pertinent part, the petition and letters allege as follows :
1. There is pending in the Superior Court of the State of California
for the County of Monterey, Salinas, California, a complaint for
injunction and damages under the California Jurisdictional Strike
Act, Docket No. 59360, filed by the Petitioner against Paul Richards,
Russ Hansen, Lee Thiltgen, and the Union.
2. The Petitioner is a building contractor in Salinas, California,
who is in the business of constructing residences. He purchases mate-
rials locally in the vicinity of Salinas and Monterey, California, and
his gross annual volume of business does not exceed $60,000.
3. There has been no admission or denial of the aforesaid commerce
data and the State court has made no finding with respect thereto.
4. There is no representation or -unfair labor practice proceeding
involving the subject matter in the State court proceeding presently
pending before this Board.
5. In its letters of June 16 and 24, the Union generally alleges that
the Petitioner's information is "incomplete and incorrect" and that
"the conclusory statements" in the petition "are contrary to the actual
facts of the case." Except for the general statements that the Peti-
tioner "is not a sole proprietor but has an employee loan arrangement
with at least one other contractor" and that he "did business with other
materialmen," the Union does not set forth specific commerce data as
to the Petitioner's operations.
On the basis of the above, the Board is of the opinion that :
1. The Petitioner is a building contractor engaged in building resi-
dences in the vicinity of Salinas, California. Because the Petitioner's
business may be both retail and nonretail in character,' we shall apply
to his operations our discretionary retail and nonretail jurisdictional
standards. As the Union has not submitted specific information per-
taining to the Petitioner's operations, but has merely denied, in gen-
eral, the completeness and accuracy of the data submitted by the Peti-
tioner,2 we rely, for purposes of this Advisory Opinion, only upon the
allegations in the petition.
2. The current standard for the assertion of jurisdiction over retail
enterprises which fall within the Board's statutory jurisdiction is a
1 Harry Tancredi, 137 NLRB 743
2 Except for the general allegations that the Petitioner has an employee loan arrange-
ment with another construction contractor, there is no specific indication that the Peti-
tioner, in conjunction with other employers, might be assumed to be a single employer for
jurisdictional purposes See, e g , Midwest News Reel Theatres, Inc., 151 NLRB 857.
McCORMICK CONCRETE COMPANY OF S.C., INC. 1507
gross volume of business of at least $500,000 per annum. Carolina
Supplies and Cement Co., 122 NLRB 88, 89. The current nonretail
standard requires an annual minimum of $50,000 out-of-State inflow
or outflow, direct or indirect. Siemons Mailing Service, 122 NLRB 81,
85. The Petitioner's $60,000 annual gross volume of business does not
meet the Board's $500,000 retail test and there has been no showing
made that the Petitioner has out-of-State inflow or outflow sufficient to
meet the $50,000 nonretail test .3
Accordingly, the parties are advised under Section 102.103 of the
Board's Rules and Regulations, Series 8, as amended, that on the basis
of the information submitted herein, the Board would not assert juris-
diction over the Petitioner's operations.
3 Further, there is no allegation that the Union 's conduct involved herein concerns sec-
ondary employers at a common construction site where the Board would also consider for
jurisdictional purposes the entire operations of the secondary employers at the location
affected by the Union 's conduct . See Amoskeag Construction Company , 147 NLRB 166;
Local 229 , International Brotherhood of Electrical Workers, AFL -CIO (John E. Fuller-
ton, Inc. ), 144 NLRB 202 ; Robert M. Matthews , d/b/a Matthews Construction Company,
142 NLRB 435 ; Warren Weibel, an individual, d'/b/a Weibel Excavating Company, 137
NLRB 1788, and cases cited in footnote 1 therein.
McCormick Concrete Company of S.C. , Inc. and International
Union of Operating Engineers Local 497, AFL-CIO. Cases Nos.
11-CA-2470 and 11-RC-2002. July 21,1965
DECISION AND ORDER
On April 26, 1965, Trial Examiner Joseph I. Nachman issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent 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 attached Trial Examiner's Deci-
sion. The Trial Examiner further found that the Respondent had not
engaged in certain other unfair labor practices alleged in the complaint
and recommended that the complaint be dismissed with respect to the
latter allegation. The Trial Examiner also recommended that the
challenge to one ballot, in Case No. 11-RC-2002, which was cast in
the election held on August 21, 1964, be sustained; that the challenges
to certain other ballots be overruled; and that the latter ballots be
opened and counted and a revised tally of ballots be issued in con-
formity with the National Labor Relations Board's Rules and Regu-
lations, Series 8, as amended. Thereafter, the Respondent and the
General Counsel filed exceptions to the Trial Examiner's Decision
and recommendations, and also filed supporting briefs.
153 NLRB No. 137.