The T. H. Rogers Lumber Co.

National Labor Relations Board - Board Decisions

May 23, 1957

117 N.L.R.B. 1732 (N.L.R.B. 1957)

1732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the electronics electricians, contrary to the contentions of the In-
tervenor, are -properly a part of an electrical craft unit with other
electricians and instrument repairmen.13
In view of the foregoing, and the record as a whole, we find that the
following employees constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9 (b) of the
Act : All electricians, including shift, shop, and electronics electricians,
instrument repairmen, and apprentices for such classifications, em-
ployed at the Employer's plate glass manufacturing plant in Cum-
berland, Maryland, excluding all other employees, guards, and super-
visors as defined in the Act.14
[Text of Direction of Election omitted from publication.]
11 Lockheed Aircraft Corporation, Georgia Division, 111 NLRB 594, at 597-598
14 Thiokol Chemical Corporation, 113 NLRB 547; see also General Motors Corporation,
Chevrolet Motor Division, Tonawanda Foundry Plant, Tonawanda, New York, supra.
We also find without merit the Intervenor's contention that the Cumberland plant is
a mere accretion to an existing unit of other flat glass plants of the Employer, and that
therefore the unit should include all similar employees at all the Employer 's plate and
window glass plants. The Employer 's Cumberland plant is an entirely new operation ;
thus, according to the Employer, this plant was designed and constructed to manufacture
a new product, namely " precision quality plate glass" of the "finest quality of finished
plate glass in the United States," and of a quality that "will surpass all other plate glass in
optical and strength qualities." In manufacturing this glass, new techniques and equip-
ment have been devised to create a continuous ribbon of glass of some 1,800 feet or "the
longest ribbon of glass to be found anywhere in the world." Moreover, we note that
The Cumberland plant is a considerable distance from the Employer's other plants ; a
large number of employees will ultimately be hired (approximately 600) ; although some
maintenance employees had previously worked at other of the Employer's plants, it
appears that most of the employees will be hired locally; and there is no evidence of
interchange between the employees of the new Cumberland plant and employees at other
plants of the Employer. In these and other respects , the accretion cases cited by the
Intervenor are factually distinguishable . See Bornstein Sea Foods, Inc., 111 NLRB 198 ;
The Goodyear Tire & Rubber Company (Special Products Plant "C" ), 80 NLRB 1347.
The T. H. Rogers Lumber Company 1 and United Brotherhood of
Carpenters and Joiners of America, Carpenters Local 986, AFL--
CIO, Petitioner. Case No.16 PC 1954. May 23,1957
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 John F. Funke,
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 operates a mill and warehouse at McAlester,
Oklahoma, and a chain of lumberyards in several States. Twenty-
The Employer 's name appears as amended at the hearing.
The Employer's motion to dismiss the petition for lack of jurisdiction is hereby denied
for the reasons stated below.
117 NLRB No. 230.
THE T. H. ROGERS LUMBER COMPANY 1733
six of the lumberyards are in Oklahoma, three in Missouri, and one in.
Kansas. The Petitioner seeks to represent employees at the mill and
warehouse only. During the year ending August 31, 1956, the mill
and warehouse received materials valued at approximately $493,000
directly from out of State. There was no direct outflow and no sub-
stantial indirect outflow. Sales of the mill and warehouse amounted
to approximately $900,000, about half of which were made to other
enterprises and the remainder to the Employer's Oklahoma lumber-
yards. The lumberyards as a group received material valued at in
excess of $1,000,000 from out of State but also had no direct or indi-
rect outflow. The gross sales of the mill and warehouse and lumber-
yards to others approximated $3,300,000. The Employer contends
that the operations should be governed by the Board's retail jurisdic-
tional standards, but that whether considered retail or nonretail, its
operations do not meet Board standards, and the petition should
therefore be dismissed.
Assuming, without deciding, that the Employer has properly
characterized the lumberyards as retail, it is nonetheless clear that the
rest of the Employer's enterprise, which is sizeable, is nonretail. In
dealing with such combination enterprises in the past, the Board has
not formulated a separate jurisdictional standard but has, in each in-
stance, applied the nonretail standards.3 It has done so, without
measuring the relative sizes of an employer's retail and nonretail
operations 4 and without regard to whether the employer consisted of
a single establishment engaged in both retail and nonretail activity or
of separate establishments, some of which were retail and some
nonretail. In accord with this precedent, the Board will continue to
apply nonretail standards to such combination enterprises, except, of
course, in the case where the nonretail aspect of the employer's opera-
tions is clearly de minimis. Therefore, we reject the Employer's con-
tention that the Board's retail standards should govern the assertion
of jurisdiction herein.
The standards applicable to nonretail enterprises under the Board's
1954 jurisdiction plan were set forth in Jonesboro Grain Drying
Cooperative 5 and provided for the assertion of jurisdiction over single
nonretail establishments or intrastate chains of nonretail establish-
ments having direct inflow of $500,000, indirect inflow of $1,000,000,
direct outflow of $50,000, or indirect outflow of $100,000.6 As for
3 See, for example , American Television Inc. of Missouri , 111 NLRB 164 ; Meddin En-
terprises, Incorporated , 114 NLRB 137 ; W. B. Jones Lumber Company , Inc., 114 NLRB
415. enfd . 39 LRRM 2728 ( C. A. 9) ; Central Carolina Farmers Ewchange , Inc., 115
NLRB 1250; Potato Growers Cooperative Company, 115 NLRB 1281.
4 See W . B. Jones Lumber Company , Inc., supra.
110 NLRB 481.
s The Jonesboro decision , as issued , distinguished between directly utilized indirect
outflow and other indirect outflow. This distinction was removed in Whippany Motor
Co., Inc., 115 NLRB 52.
1734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
multistate nonretail enterprises, the Jonesboro decision provided for
assertion of jurisdiction over an entire multistate enterprise or any
part thereof if it had direct outflow of $250,000 or indirect outflow of
$1,000,000. Later the Board established an additional alternative test
of $3,500,000 gross sales as a standard for asserting jurisdiction over
multistate nonretail enterprises.' If none of the multistate enter-
prise standards was met by the enterprise as a whole, Jonesboro pro-
vided that the Board would assert jurisdiction over those establish-
ments within the enterprise, if any, which met single establishment
standards.
As the Board stated in the Coca Cola case,' "When, in the fall of
1954, the Board, in a series of cases, announced a revised set of juris-
dictional standards covering a number of typical situations then
presented for decision, it was indicated that, from time to time, as
additional typical cases arose, the established standards would be
reevaluated and additional standards would be established if they
appeared warranted." The instant case taken together with expe-
rience under the Jonesboro standards and the analogous retail stand-
ards, as set forth in Hogue and Knott Supennarkets,9 demonstrates
that the need for reevaluation has arisen. Thus, it appears that a
literal application of the Jonesboro standards as they now stand would
require dismissal of the instant petition, as the Employer's operations
as a whole do not satisfy existing multistate standards, and the mill
and warehouse here involved does not independently meet any of the
single establishment standards. However, it must be observed that if
the Employer divested itself of its Missouri and Kansas establish-
ments, it would lose its multistate character, and the smaller resultant
intrastate enterprise, having direct inflow in excess of $500,000,10
would satisfy Jonesboro intrastate standards. When faced with
analogous facts under its retail standards, the Board decided, pending
further experience with those standards, to assert jurisdiction where,
as here, the unit sought fell within the intrastate segment which
independently met intrastate standards," and a similar relaxation
of the Jonesboro standards for like reasons would permit assertion of
jurisdiction in -this case on the basis of the Employer's Oklahoma oper-
ations. Although such a modification would result in parallel appli-
cation of retail and nonretail standards when the unit sought was
wholly intrastate in scope, existing multistate standards would con-
tinue to be applied to similar facts when the unit sought was not so
7 Coca Cola Bottling Co. of New York, Inc., 114 NLRB 1423.
8 Supra
9 110 NLRB 543.
10 As the mill and warehouse has annual direct inflow of $493,000 , as all the lumber-
yards have annual direct inflow in excess of $1,000,000 , and as the annual sales of the
Kansas and Missouri yards amount to only approximately $427,000, it is clear that the
direct inflow of the Employer 's Oklahoma operations exceeds $500,000
11 Greenberg Mercantile Corp., 112 NLRB 710; B. G. Wholesale, Incorporated, 114
NLRB 1429.
THE T. H. ROGERS LUMBER COMPANY 1735
confined,12 and would therefore-result in the assertion of jurisdiction
over a part of an enterprise while denying assertion over the entire
enterprise. Moreover, this makes the assertion of jurisdiction depend-
ent upon the unit sought or the scope of the employer's operations
involved in the proceeding and rejects the concept that it is the impact
of the totality of an employer's operations on commerce that should
determine whether the Board will assert jurisdiction in any pro-
ceeding involving that employer. It is the latter concept rather than
the former which has been accepted by the courts " and applied in all
other aspects of the Board's 1954 standards.14
Consideration of the problems which have been recurring under
the present Jonesboro standards, or which might follow from modify-
ing the nonretail standards to parallel the modification in the retail
standards, leads to the conclusion that they can be eliminated by
creating one set of standards for all nonretail enterprises, whether
comprised of a single establishment, an intrastate group of establish-
ments, or a multistate group of establishments. In our opinion such
a result can best be achieved by extending to multistate enterprises
present standards applicable to single establishments and intrastate
chains. Accordingly, we shall modify our nonretail standards by
eliminating the multistate standards set forth in the Jonesboro and
Coca Cola Bottling Co. of New York, Inc." cases , and, applying to the
combined operations of all enterprises the single establishment and
intrastate chain standards set forth in Jonesboro, as modified by Whip-
pany Motor Co., Inc." Thus, in this case and in the future, we shall
assert jurisdiction over all nonretail enterprises having 1 or more
establishments 14 where the enterprise has total direct inflow of
$500,000 or more, total indirect inflow of $1,000,000 or more, total
direct outflow of $50,000 or more, or total indirect outflow of $100,000
or more.18
As we have indicated above, in referring to the Greenberg Mercan-
tile, B. G. Wholesale, and Deskins cases ," the same problems arise
12 Dixie Coca Cola Bottling Company, Incorporated , 116 NLRB 312 ; Deskins Super
Market, Inc , et at., 115 NLRB 1571.
'- See discussion and cases cited in Potato Growers Cooperative Company, 115 NLRB
1281.
14 See, for example, The Ransom and Randolph Company, 110 NLRB 2204 . Assertion
of jurisdiction on less than an enterprises basis may also have the effect of disrupting
existing units and complicating the application of the substantive provisions of the Act
in the case of unfair labor practices affecting more than one establishment in an enterprise.
15 Supra.
19 Supra.
17 In accord with the principle underlying this modification of the Jonesboro standards,
that it is the totality of an employer 's operations which is the proper yardstick for de-
termining whether jurisdiction should be asserted , these standards will be applied to all
enterprises which constitute a single employer without regard to evidence of integration
of the establishments within the enterprise
is To the extent that Jonesboro Grain Drying Cooperative , supra; Coca Cola Bottling
Co of New York, Inc., supra, and cases relying thereon are ,nconstistent herewith, they
are hereby overruled.
19 Supra.
1736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
under analogous facts in cases involving retail or service enterprises
under the standards of Hogue and Knott Supermarkets 2° Those
standards provide for the ,assertion of jurisdiction over single retail or
service establishments or intrastate retail or service chains having
direct inflow of $1,000,000, indirect inflow of $2,000,000, and direct out-
flow of $100,000. However, they require a gross volume of business of
$10,000,000 for the assertion of jurisdiction over a multistate chain
enterprise. As in the case of the nonretail standards, the problems
referred to above can best be eliminated by extending to all retail or
service enterprises present single and intrastate chain retail or service
establishment standards, and eliminating the multistate standard
established in the Hogue and Knott decision. Accordingly, in the
future, we shall assert jurisdiction over all retail or service enterprises
having 1 or more establishments where the enterprise has total direct
inflow of $1,000,000 or more, total indirect inflow of $2,000,000 or more,
or total direct outflow of $100,000 or more.21
Applying the nonretail standards in the instant case, as it appears
that the combined direct inflow of the Employer's entire enterprise
is in excess of $500,000, we find that it will effectuate the policies of
the Act to assert jurisdiction over the Employer in this case 22
2. The labor organization involved claims to represent certain em-
ployees 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 parties have agreed and we find that the following employees
of the Employer at its McAlester, Oklahoma, mill and warehouse
constitute a unit appropriate for purposes of collective bargaining
within the meaning of Section 9 (b) of the Act:
All truckmen, warehousemen, and mill workers, excluding office
clerical employees, guards, and supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
MEMBER RODGERS took no part in the consideration of the above De-
cision and Direction of Election.
20 110 NLRB 543.
21
To the extent that Hogue and Knott Supermarkets , supra, and cases relying thereon
are inconsistent herewith , they are hereby overruled
22 In order to avoid the necessity for further hearings in pending cases which have been
heard prior to the issuance of this decision , the Board will assert jurisdiction in such
nonretail cases on the basis of gross sales of $3 , 500,000 and in such retail cases on the
basis of gross volume of business of $10,000,000 where the records contain inadequate
information to determine whether the standards set forth herein are met. Otherwise
the gloss volume of business and gross sales tests will no longer be applied.